An employee in the UK was dismissed after he posted non-work related offensive and derogatory tweets on his private Twitter account outside of work time. This is understood to be the first case to deal with the issue of unfair dismissal in such circumstances.
The employee, Mr. Laws, who worked as a risk and loss prevention investigator for Game Retail Ltd. (Game) created a private Twitter account (which did not specifically link him to Game) to follow other Game stores’ Twitter accounts. This was for the purpose of monitoring them for inappropriate content. He permitted approximately 65 Game stores to follow his account and made no attempt to restrict tweet visibility. In his private capacity, he posted a number of offensive and abusive non-work related tweets. This was reported by a co-worker and an investigation ensued during which 28 tweets were identified as offensive. Mr Laws was suspended during the investigation and, following a disciplinary hearing, he was dismissed for gross misconduct on the basis that the tweets offended “dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people”.
Mr Laws brought a claim for unfair dismissal. At the first hearing, the Tribunal held that Mr Laws had been unfairly dismissed because he had tweeted the offensive material in his own time and no employees or customers of Game would have seen the tweets. On appeal, the Employment Appeals Tribunal (EAT) disagreed and held that it was wrong to assume that Mr Law’s followers were restricted to his social acquaintances. The stores following Mr Laws would have seen the offensive material and, furthermore, Twitter was freely accessible to customers. The EAT was particularly influenced by the fact that Mr Laws had made no attempt to use restriction settings and had failed to open two separate Twitter accounts (one for work purposes and one for purely personal use).
A William Fry survey carried out in 2014 showed that employees spend on average 39 minutes per working day on social media accounts. Accordingly, it is vital for employers to have a social media policy in place. Employers should remind employees that even if tweets are posted outside of work hours and are not principally directed at co-workers, such tweets may have an impact on their employment and, accordingly, could result in disciplinary action.