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#OffensiveTweets - misuse of Twitter and unfair dismissal
Social media and its use by staff has presented employers with a whole new raft of challenges, or more accurately, old challenges in new clothing.
The case of Game Retail Limited v Laws, was the first on the use of Twitter to reach the Employment Appeal Tribunal (EAT) but the decision was premised in settled law.
Mr Laws worked for Game Retail as a risk and loss prevention investigator with responsibility for 100 of the employer's 300 stores. During his employment he set up a Twitter account. Mr Laws used this account both personally outside of work time and 'to see if anything had happened with communication [by Game Retail] that had been unacceptable'.
Mr Laws followed 100 Game Retail stores through his Twitter account. In addition, following a tweet recommendation by the Preston store manager, Mr Laws was followed by 65 Game Retail stores.
In July 2013 a store manager flagged offensive tweets that had been published by Mr Laws. As well as being generally offensive, these tweets were described as being offensive to dentists, caravan drivers, golfers, an A&E department, Newcastle United supporters, the police and disabled people.
Mr Laws was summarily dismissed by Game Retail. Mr Laws subsequently brought a claim for unfair dismissal. The Employment Tribunal (ET) held that Mr Laws' dismissal was unfair as the sanction imposed did not fall within the band of reasonable responses.
On appeal, the EAT held that the ET had substituted its own view for that of the employer and that the decision was perverse in light of the findings of fact. In particular:
The ET had decided that the Twitter account was private. The EAT noted however that Mr Laws had not activated restriction settings on the account and that his tweets were publicly visible.
The ET considered that there was no evidence that actual offence had been caused by Mr Laws tweets to the public or Game Retail staff. The EAT pointed to the store manager who had felt sufficiently strongly about the tweets to raise them as issues. In any event, the EAT stated that the question was whether Game Retail was entitled to conclude that offensive material going to 65 stores, plus potentially staff and the public might cause offense.
The ET had held that Mr Laws did not tweet derogatory comments about his employer and did not identify himself as an employee of Game Retail. The EAT considered that it was possible to link Mr Laws to Game Retail by his following/follower profile and by the Preston manager's promotional tweet.
On the basis of these findings, the EAT remitted the claim to a freshly constituted tribunal.
It is understandable that employers may be wary of the use of social media by staff and potential reputational damage that can be caused by its misuse. Employers should have a Social Media Policy in place that, amongst other things, sets out the parameters of acceptable use, ensures that the responsibility of employees is understood and confirms the potential consequences of misuse.
If online misconduct is identified then this should be dealt with in the same way as ordinary misconduct. In particular, employers should avoid knee-jerk decisions and assumptions and ensure that care is taken to investigate and evaluate the nature and seriousness of the misuse and the actual or potential damage caused.