A recent EAT decision concerning offensive tweets made by an employee on his personal twitter account, said that the Employment Judge should have taken account of the public nature of Twitter when deciding whether the employee's dismissal was fair.

Mr Laws was employed by Game Retail Limited which depended on social media for marketing. He set up a personal twitter account in order to follow these stores. A number of the stores reciprocated the "follow" without encouragement.

Laws found himself the subject of disciplinary proceedings after he posted offensive, non-work related comments on his twitter account, which were reported by another employee to Game Retail. Subsequently, Mr Laws was dismissed for gross misconduct for posting the 28 offensive tweets to his private account.

Mr Laws made a successful unfair dismissal claim against his former employer. Game Retail appealed the decision to the EAT, on the basis that it had made a reasonable response to Laws' gross misconduct and that its disciplinary policy was clear – such actions could amount to gross misconduct.

The EAT allowed Game Retail's appeal and sent the case to a fresh Tribunal to consider the reasonable response and sanction for misconduct. The Appeal Judge held that although the comments were made on Laws' personal twitter account, the fact that many stores followed him on this account meant that a significant number of customers could have seen the offensive tweets. This could have caused reputational damage to the business, and there was no requirement to show that offence was caused by the tweets. It found that Twitter is a more public forum than Facebook. The "range of reasonable response" unfair dismissal test was applied by the EAT. It also indicated that unfair dismissal cases in the context of social media usage are dependent on the individual facts.

The EAT refused to provide general guidance on wider social media use, however, the case provides some useful further insight on the do's and don'ts with regard to private postings on public social media platforms for employees and employers. 

Policies about messages on social media should be made clear to all employees. The most effective way of doing this is through a social media policy which clearly states what is acceptable use of social media, inside and outside the workplace; and what is not. Employees should be aware of the possible sanctions if they breach the policy.

Anything less and you may face your own Twitter tribunal….

The case can be viewed here