Offensive but apparently personal tweets by an employee can justify dismissal

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In this age of technological wonder it is very important for employers to have social media policies, inductions and training. These need to make it clear to employees that work, personal and private use of Twitter and other social media sites can result in dismissal under certain circumstances. They also need to give details of what those circumstances could be.

An employee went to the Employment Tribunal stating unfair dismissal after his offensive tweets were bought to the attention of his employer and he was dismissed after disciplinary proceedings. The Employment Tribunal ruled that his dismissal was indeed unfair but the Employment Appeal Tribunal disagreed and remitted the case back to be reheard.

The employee was responsible for monitoring Twitter for inappropriate activity by other employees. He had set up his own Twitter account for this reason. The account didn’t pinpoint him as employed by his employer who was a major retailer. He ‘followed’ 100 of the retailer’s stores and 65 of them followed him back. One of the store managers complained to the retailer that the employee’s tweets were offensive. When they investigated the allegations they found that there were 28 offensive tweets including comments about dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people. The disciplinary procedures were followed and he was dismissed on grounds of gross misconduct.

The employee argued that ‘there was no express provision in his employer’s disciplinary policy making it clear that offensive or inappropriate misuse of social media was gross misconduct’. He said his tweets were done in his spare time not during work hours and his comments were not work related so the Employment Tribunal ruled unfair dismissal.

However, the Employment Appeal Tribunal disagreed: They said the proper test was ‘whether dismissal was within the band of reasonable responses for an employer, after a reasonable investigation and based on conclusions which it had generally and reasonably reached.’ It said the relevant issues included;

  • Whether the employer has an IT or social media policy
  • The nature and seriousness of the alleged misuse
  • Any previous warnings for similar misconduct
  • Any actual or potential damage done to customer relationships
  • If applicable, the speed with which any offending tweets are removed

In this particular case EAT found that although the employee’s Twitter account appeared to be personal, it was in fact being used for work purposes. Not only was he being followed by stores and employees of stores that were owned by his employer, but one store manager had even recommended other employees follow him. They found that he could have created 2 accounts – one for work and one for his personal use but he had chosen not to, instead posting his comments and opinions on the account set up for work. EAT found that he had also failed to adjust the settings on his account to hide his comments from general view so it wasn’t just employees that could see his tweets it was customers.

From the information on his account EAT found that it was possible to work out that he was associated with his employer so there was potential for his tweets to reflect badly on the retailer.
Case ref: Game Retail Ltd v Laws UKEAT/0188/14/DA-

If you need help with employee policies and procedures or staff handbooks, we’d be happy to discuss.

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