The Employment Appeal Tribunal has decided that the range of reasonableness response test is sufficiently flexible to cover social media cases without the need for additional guidance. It said that questions that arise in these cases would always be fact sensitive and declined to offer guidance which could encourage an inappropriate “tick box mentality”.
Despite these protestations, this decision – believed to be the first social media case to reach the EAT – still offers some learning points. The first is to make sure that the employment tribunal understands exactly how the claimant was operating the offending social media account at the time of dismissal.
In this case the employment judge appears not to have appreciated the public nature of Twitter, at least when the default privacy settings are used. The claimant worked for the retailer Game as a loss prevention manager with responsibility for about 100 stores. He had set up a private Twitter account. This was partly to follow the individual Twitter accounts maintained by the stores for which he was responsible, and this led to some 65 of these stores following his personal Twitter feed. The employment judge did not appreciate that his tweets would therefore be immediately accessible to a large number of co-workers, even if they were personal in nature. It would also be possible for the wider public to infer that he was connected with Game by looking at details of his followers.
This misunderstanding appears to have led the judge to decide that his employer had over-reacted by dismissing him for posting a string of highly offensive tweets. This seems to have been on the basis that his co-workers would not have seen them, and other followers of his personal account would not have been aware of his connection with Game.
In the end the EAT decided that this was a case that could have gone either way, so they remitted it to the employment tribunal to re-assess the fairness of the dismissal, based on a correct understanding of how the account had been operated. In that context the employment judge will no doubt be looking at the extent of the damage to the employer’s reputation, any previous warnings for misconduct and the employer’s social media policy. However, the EAT did not wish to elevate these factors into general guidance since in its view they were either too obvious or too general to be of much help when assessing particular cases. The range of reasonable responses test is therefore affirmed as sufficiently flexible to cope with misconduct in a social media context.