Facts
Mr Laws was employed by Game Retail Limited (GR) as a risk and loss prevention investigator for 100 of its stores. GR used twitter for marketing and communications and each store had its own twitter profile and feed which managers and deputies could access and customers could follow. On 18 July 2012 Mr Laws opened a personal twitter account and began to follow the 100 stores he was responsible for, to monitor inappropriate activity as part of his role at GR. Of those stores, 65 followed Mr Laws’ twitter feed.
In July 2013, a store manager identified and notified a regional manager of offensive tweets posted by Mr Laws, including tweets which were offensive to dentists, the police and disabled people, among others. On 22 July these tweets were put to Mr Laws. By 23 July he had taken down his twitter feed, but was dismissed on 31 July 2013. Mr Laws claimed his dismissal was unfair. A tribunal judge agreed though found he had contributed to his dismissal through his conduct and reduced the award by 40%. GR appealed.
Law
Section 98(4) of the Employment Rights Act 1996 states that whether a dismissal for a given reason is fair or unfair will depend on ‘whether in the circumstances ...the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.’ This is known as the range of reasonable responses test and the substance of the appeal was whether the Tribunal had correctly concluded that GR had acted unreasonably in treating Mr Laws’ conduct as a sufficient reason for dismissal.
Decision
The Employment Appeal Tribunal (EAT) found that the Tribunal judge had fallen into the ‘substitution trap’ and rather than considering whether GR’s decision to dismiss was within the range of reasonable responses had instead substituted his own view. The dismissal could not stand and would be remitted to another tribunal for reconsideration.
In particular, Mr Laws had not used the restriction settings on his account or created two separate accounts, one for work and one for social use. His account could therefore be accessed by social and work acquaintances and by GR customers, therefore his usage was not properly speaking, private usage.
Although there was nothing on the face of the tweets to show Mr Laws was a GR employee and nothing directly derogatory of GR, there was a clear connection, given that he followed 100 stores and was followed by 65 in return. Therefore, overall it was potentially reasonable for GR to decide dismissal was an appropriate sanction.
Comment
The EAT was invited to lay down rules for general application but declined to do so. It stressed that each case will be decided on its own merits and under the range of reasonable responses test.
Kate Wyatt of Lindsays’ employment team notes:
“Although the EAT did not provide general guidelines, a number of pointers will help employers who use and rely on social media:
- Employers can frame appropriate use by developing a full policy, adapted to their business and social media use, which sets out what they consider appropriate;
- Policies should make it clear that they apply to personal use, outside working hours and on personal equipment;
- Before deciding to dismiss, employers should investigate and document the following:
- the seriousness of any damage to their reputation
- whether the employee withdrew the post and expressed remorse and if so how fast
- whether there is a clear connection to work, given the nature of the posting and how easy it is to identify the employer
- consider whether the employee had any reasonable expectation of privacy in making the post. On this last, it is rare that twitter feeds will be private, given the ease with which they can be retweeted and that the average number of twitter followers is 208.’
If you are an employer who would like guidance on this issue, contact one of our Employment team for advice.
