If we had to summarise the lessons to be learned from the EAT decision in the case of Game Retail Ltd v Laws in no more than 140 characters, it would be as follows:
Employees should separate private Twitter opinions from their work-connected accounts whilst employers must judge each case on its own facts
This decision is thought to be the first case to address the question of misconduct using Twitter. Many employers will be interested in this judgment; Twitter is arguably the latest social media application to impact on the workplace and to call into question the grey line that separates an employee’s private life and work life.
This case involved an employee who had responsibility for risk and loss prevention in a number of Game stores. In 2012 Mr Laws set up a personal Twitter account in order to be able to monitor inappropriate tweets by employees in those stores for which he was responsible. Following a complaint by a store manager about Mr Laws’ tweets, an investigation was carried out.
This found that Mr Laws had made a number of tweets that were deemed to be offensive. Mr Laws followed the Twitter accounts of approximately 100 Game stores and was followed by around 65 stores. The employer concluded that these tweets amounted to gross misconduct as the tweets were in the public domain and could be seen by his colleagues. Although Mr Laws did not affiliate his account with his employer and it was a private Twitter account, he also used that account for work purposes. Mr Laws was therefore dismissed.
The Tribunal Judge at first instance found that the decision to dismiss was outside the band of reasonable responses. However, on appeal, the EAT overturned this decision and remitted the case to a new Tribunal on the grounds that the judgment was perverse and the Judge had substituted his own views for that of the employer.
The EAT declined to offer any general guidelines for employers faced with this type of behaviour, preferring not to encourage a tick-box approach to such cases. However, there are still some key points which employers (and employees) should note:
• Tweets sent by an employee out of work hours may still lead to disciplinary action; tweets are available any time and anywhere;
• Employees should consider their privacy settings on Twitter and use the restrictions where appropriate;
• If an employee’s job requires them to have a Twitter account, for example, as in this case, to monitor tweets relating to the employer, using the same Twitter account to voice personal opinions may lead to disciplinary action, even if the employee does not purport to speak on behalf of the employer;
• Any misuse of social media in a work context is likely to be fact sensitive and should be viewed on its own merits;
• The test for a fair dismissal in these circumstances is as set out in the case of Iceland Frozen Foods v Jones (1982), namely, 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 (the “band of reasonable responses” test).
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