Game Retail Ltd v Laws UKEAT/0188/14
The original employment tribunal had held that an employer's decision to summarily dismiss an employee for posting offensive, non-work related messages on his personal Twitter account did not fall within the band of reasonable responses which a reasonable employer might adopt. However it was the EAT's view that the tribunal had failing to take full account of the public nature of Twitter and whether the employee’s purportedly private use of Twitter was truly private, given that he was followed by a number of other employees. The EAT refused to lay down any general guidance on dismissal for social media misuse. It noted that the cases are fact-sensitive and that the usual ‘range of reasonable responses’ test applies.
Game Retail Ltd (GR Ltd) is a games retailer with over 300 stores across the UK. Its stores rely on Twitter and other social media tools for marketing and communications. Each store has its own Twitter profile and feed, to which each store's manager has access for posts. Customers follow their local stores on Twitter, and their posts can therefore appear on the store Twitter feed. The Claimant was employed by GR Ltd with responsibility for investigating losses, fraud and theft in over 100 retail stores. He opened a personal Twitter account and began to follow the Twitter accounts of those stores in order to monitor any inappropriate activity by employees although his account did not specifically associate him with GR Ltd. One local manager tweeted an encouragement to other stores to follow the Claimant and 65 stores did so. The employee made no attempt to use the restriction settings, so his tweets were publicly visible by default.
In July 2013 an anonymous store manager notified one of GR Ltd’s regional managers about allegedly offensive and abusive tweets that the Claimant had posted. GR Ltd conducted an investigation and obtained downloads of the Claimant's Twitter profile and feed. The senior manager investigating the matter identified 28 offensive tweets. A number of the tweets contained expletive and obscene language. GR Ltd conducted an investigation and found that the Claimant was guilty of gross misconduct. It summarily dismissed him. His appeal was dismissed, and he complained to a tribunal of unfair dismissal.
The tribunal held that he had been unfairly dismissed and that the decision to dismiss fell outside an employer's band of reasonable responses. The tweets were posted for private use and it had never been established that any member of the public or employee of GR Ltd had access to the Claimant’s tweets or associated him with GR Ltd. GR Ltd’s disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct.
GR Ltd appealed to the EAT which allowed the appeal. It held that the tribunal had failed to properly apply the band of reasonable responses test. The case was remitted to a fresh tribunal. The EAT found that the employment judge did not properly test the question of whether the Claimant’s usage was indeed private. Neither had he restricted his settings to private nor had he set up separate accounts, one to follow the stores and one for purely personal use. Although it might be relevant that social media use is intended to be private, in this case, the Claimant's tweets were not despite being posted from his personal Twitter account and in his own time. He was tweeting in the knowledge that he was followed by 65 stores. He had not discouraged stores from following him and had in fact retweeted the local manager’s suggestion that they do so. Hiss tweets could be seen by staff and potentially customers. The judge’s finding that there was only a "theoretical" risk of employees and members of the public seeing the Claimant’s tweets was inconsistent with the fact that a member of staff had seen his tweets and reported them.
The EAT held that the tribunal had also erred in focusing on whether the tweets related to GR Ltd or had identified the Claimant as its employee. It should have focused on whether the tweets were offensive and whether other staff or customers might have read them. In particular, the tribunal should have addressed the fact that the Claimant was following 100 stores and was followed back by 65.
GR Ltd urged the EAT to provide general guidance on such cases but it refused to do so. Instead it held that the correct approach was to apply the "range of reasonable responses" test to the particular facts because in social media cases, like in any others, the issues will always be fact sensitive.
What to take away
The EAT contrasted this case with Smith v Trafford Housing Trust  EWHC 3221, where the High Court held that an employer had not been entitled to characterise the posting of views about gay marriage on an employee's Facebook wall as misconduct. Mr Smith had identified himself as a manager of the Trust on his Facebook wall but this was not inconsistent with the general impression that his Facebook wall was for personal and social information. From his Facebook page, it was clear that Mr Smith was not using it for work-related purposes, despite the fact that many of his Facebook friends were colleagues.
Although a distinction is being drawn by the courts between work related and personal use of social media, work colleagues could be "friends" in both types of accounts. However while employers can restrict an employee's freedom of expression at work, whether that extends activities out of work will depend on the particular circumstances.