Dismissal for Offensive Tweets

The EAT has overturned an employment tribunal’s decision that a dismissal for posting abusive tweets on a personal Twitter account was unfair. 

In Game Retail Ltd v Laws, L was employed as a risk and loss prevention investigator responsible for investigating losses, fraud and theft. He had responsibility for 100 stores. He opened a personal Twitter account which did not specifically link him to his employer. He started following the stores for which he was responsible in order to detect any inappropriate activity by employees, such as offering video games for sale. One local manager tweeted on his store account an encouragement to other stores to follow L and 65 stores did so. Following an anonymous store manager notifying the employer about offensive and abusive tweets posted by L, an investigation took place and L was dismissed for gross misconduct. 

L claimed unfair dismissal and the employment tribunal upheld his claim. Although the judge accepted that customers and employees might have been offended by the tweets, he considered that dismissal was not within the band of reasonable responses as the tweets had been posted for private use and it had not been established that any employee or customer had seen his tweets or associated him with the company. In addition, the company’s disciplinary policy did not clearly state that inappropriate use of social media in an employee’s own time would be treated as gross misconduct. 

The employer appealed to the EAT which overturned the tribunal’s finding. The judge had not been entitled to find that L’s followers were restricted to social acquaintances and so customers and employees would not have seen his tweets. He had not made use of the restriction setting on his account, nor had he set up separate accounts, one to follow the stores and one for purely personal use. The 65 stores that followed him would have seen his tweets, as would any customers who picked up on his account, perhaps after it was recommended by the local manager. 

Although there is a balance to be drawn between an employer’s desire to prevent reputational damage and an employee’s right to freedom of expression , and the fact that the social media use is intended to be private might be relevant, the employment judge’s conclusion that L’s usage was private could not stand. He had followed 100 stores for a work purpose and had allowed 65 stores to follow him back. He had not used the restriction setting to restrict his followers to social acquaintances. He had not discouraged stores from following him and had in fact retweeted the local manager’s suggestion that they do so. In addition, the judge’s finding that there was only a theoretical risk of employees and members of the public seeing L’s tweets was inconsistent with the fact that a member of staff had seen his tweets and reported them. 

The case was remitted to the employment tribunal to be heard by a different judge. 

The EAT was asked to provide some general guidance on cases involving alleged misuse of Twitter but declined to do so. However, it would appear from the EAT’s decision that the following factors will be relevant when deciding whether a dismissal is unfair:

• The nature of the tweets and how offensive they are
• Whether the tweets are made on a purely personal Twitter account
• Whether privacy restrictions are in use so that only friends can see tweets
• Whether there is anything on the employee’s Twitter profile or in any of the tweets to link him to the employer
• Whether tweets say anything derogatory about the employer
• Whether the tweets are posted in an employee’s own time or in work time
• Whether the employee uses his own equipment or the employer’s
• Whether the disciplinary rules make it clear what sort of misuse of social media gives grounds for dismissal.