Too many tweets make a…potentially fair dismissal

In a relatively rare consideration by the Employment Appeal Tribunal ("EAT") of a dismissal for social media related reasons, it has overturned the decision of the tribunal that an employee's dismissal was unfair.

The judgment in Game Retail Ltd v Laws was an interesting consideration of an employee's use of a personal Twitter account and its capacity to provide the basis for gross misconduct for a long serving employee.

Mr Laws was employed by Game Retail Ltd ("Game") as a risk and loss prevention investigator, and had been employed since 1997. He had responsibility for 100 retail stores. In 2012, he set up a personal Twitter account and began "following" the Twitter accounts of these stores, apparently for monitoring purposes. In return, many of these stores, some 65 in total, "followed" Mr Laws' account. However, Mr Laws' account did not identify him directly with Game.

In July 2013, a manager of one of these stores alerted Game to some tweets made by Mr Laws which they had seen and found offensive. Further to a disciplinary hearing, it was held that Mr Laws was guilty of posting a number of tweets of an offensive nature – confirmed in evidence at the employment tribunal as being viewed by the decision maker as "offensive to...groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people."

It was key to the decision maker that, although Mr Laws' account was personal, he was followed by stores he had responsibility for and the employees and customers of these stores would see, or potentially see, such tweets. As such, he was dismissed by reason of gross misconduct.

The employment tribunal, perhaps surprisingly, found the dismissal to be unfair. This was on the basis that the tweets were in the private usage of Mr Laws, in his own time, and that Game's disciplinary policy did not clearly state that inappropriate use of social media policy outside working hours could be treated as gross misconduct. In the absence of this, the decision to dismiss was outwith the band of reasonable responses.

Game appealed – and was successful. The EAT held that although Mr Laws had been using Twitter in his own time and on his own personal account, his tweets were still being seen by members of staff, and Game's stores' accounts, so could not properly be considered private. The tribunal's decision that this was private social media usage amongst Mr Laws' social acquaintances was wrong.

In light of this, it remitted the case back to a differently constituted tribunal to consider the potential fairness of the dismissal afresh.

Interestingly, the EAT was asked by Game to provide some general guidance on the use of social media and the principles of unfair dismissal. The EAT declined to do so, beyond noting the relevancy of matters such as "whether the employer has an IT or social-media policy; the nature and seriousness of the alleged misuse; any previous warnings for similar misconduct in the past; actual or potential damage done to customer relationships and so on". It noted itself that this guidance was extremely general and that the existing test of whether the employer's decision and the process in reaching that decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case remains the standard that must be reached.

In light of this case, it is clear that dismissals relating to social media usage, and even personal social media usage, can be potentially fair. It would seem that key elements will be whether the usage was truly private and, as ever, whether the employer has an appropriate policy in place.