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Employee Dismissed for Sending Offensive Tweets

With the increasing popularity of Facebook and Twitter, employers often have to deal with cases of employees using social media inappropriately. In the recent case of Game Retail Ltd v Laws, the Employment Appeal Tribunal (the “EAT”) considered whether a tribunal had made an error in holding that an employer's decision to summarily dismiss an employee for posting offensive, non-work related messages on his personal Twitter account was unfair.

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Game Retail has over 300 stores across the UK and each of its stores has its own Twitter account. Mr Laws was employed by Game Retail as a risk and loss prevention investigator. He created a personal Twitter account, which did not specifically associate him with Game Retail, and began to follow the Twitter accounts of those stores he had responsibility for (approximately 100). Mr Laws stated that the main purpose of this was to monitor the Twitter activity of those stores. Of those stores, 65 followed his Twitter account, which he was aware of. Mr Laws did not use the restriction settings, so his tweets were publicly visible by default.

Concerns Over Content of Tweets

In July 2013 a manager raised concerns with Game Retail about the content of the tweets Mr Laws had been posting describing them as offensive and abusive. Following an investigation by a senior manager, 28 offensive tweets were identified, a number of which contained obscene language. Mr Laws was summarily dismissed for gross misconduct, and his subsequent appeal against his dismissal was unsuccessful. He brought a claim for unfair dismissal and the tribunal found that he has been unfairly dismissed on the basis that the decision to impose a sanction of dismissal was not reasonable because (i) the tweets were private and it had not been established that any member of the public or Game Retail employee had seen them and (ii) Game Retail’s disciplinary policy did not clearly state that inappropriate use of social media in private time could be treated as gross misconduct.

Game Retail appealed to the EAT who agreed with it, stating that Mr Laws’ tweets could not be considered private and that the tribunal should have taken into account that (i) Mr Laws had not restricted his settings to private and (ii) he was aware he was being followed by 65 of his employer’s stores. The EAT sent the case back for a fresh tribunal to hear it again. Unfortunately, the EAT declined to give general guidance on the misuse of social media by employees.

Implement a Clear Social Media Policy

Employers should encourage employees who use a Twitter account for work purposes to use it for work only and to set up a separate private account if needed. We would also recommend that a clear social media policy is implemented so employees are aware of what is expected of them and the potential sanctions if the policy is breached. Advice should always be sought before dismissing an employee.

For further information and for advice relating to issues surrounding employees’ use of social media and other employment law issues, please contact me (T: 01952 211025; E: jennifer.gibson@lblaw.co.uk) or Will Morse (T: 01432 377152; E: will.morse@lblaw.co.uk).