Tweet or Twit: you be the judge

Tweet or Twit: you be the judge

 

In early 2014 I wrote about the risk to employment from the use of social media out of hours but where critical comments of an employer were made.

 

A recent decision of the United Kingdom Employment Appeal Tribunal: Game Retail Ltd v Laws [2014] UKEAT 0188_14_0311 demonstrates that use of social media, which an employer judges as inappropriate can lead to the termination of employment even if the subject of communication is not the employer.

 

In this case the offending medium was Twitter.

 

Mr Laws was the risk and loss prevention officer of Game Retail in the north of England. Game has over three hundred stores across the UK each has its own Twitter profile as a marketing and communications tool.

 

Sometime before July 2012 and independently of his employment, Mr Laws opened his own Twitter account primarily to communicate with his friends. He then began to follow the stores for which he was responsible. The Employment Tribunal found that “he did this in order to monitor inappropriate activity by other employees”.

 

The problem for Mr Laws started when Game stores started to follow him. He was not seeking followers amongst the stores for which he was responsible, but he had not enabled the privacy setting on his feed with the result that his tweets could be seen by more than just his chosen followers.

 

On 18 July 2013 a store manager was so concerned about tweets on Mr Laws’ feed that he notified his regional manager. There commenced an investigation, which led to Mr Laws’ summary dismissal on 31 July 2013.

 

The investigation identified twenty eight tweets as offensive. Amongst those criticised were police, dentists, golfers, caravaners and Newcastle United Football Club supporters (Mr Laws followed Sunderland, Newcastle’s local rival). Mr Laws used four letter words and their present participles liberally. None of the identified tweets involved his employer and none was made in his role as a risk and loss prevention officer for Game or whilst he was at work.

 

Mr Laws contested his dismissal to the Employment Tribunal, which judged it to be unfair but reduced his compensation by forty per cent for contributory conduct.

 

Game appealed to the Employment Appeal Tribunal on the grounds that the Employment Tribunal had erred in deciding how the reasonable employer should act and/or that the finding that the dismissal was unfair was “perverse”.

 

The essential issue before the Employment Tribunal was the appropriate sanction for the conduct, it being accepted that the subject tweets were offensive and the investigation process that Game undertook was procedurally fair.

 

The Employment Appeal Tribunal allowed the appeal and the application was remitted to a different Employment Tribunal for further submissions on the test of the reasonable response of the reasonable employer and how that might affect the sanction to be imposed.

 

At the time of writing Mr Laws may still be found to have been unfairly dismissed and entitled to compensation.

 

Having said that, it is my view that even though the offending tweets were not meant for other than his known followers, were not sent from a work owned or related device, did not refer to Game and were not sent in work time, Mr Laws is going to have a hard time to convince an Employment Tribunal that his dismissal was unfair.

 

The content of the tweets, the fact that they could be associated with him as a risk and loss prevention officer for Game and the loss of reputation that Game may suffer as a result of that association would be enough for dismissal to be an appropriate sanction.

 

So again the lesson is, do not say on social media anything that you are not prepared for the whole world to know.


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