Twitter and unfair dismissal

James English analyses what is thought to be one of the first cases where the Employment Appeal Tribunal has considered the use of Twitter.

In Laws v Game Retail the Employment Appeal Tribunal has handed down judgment on what is possibly the first case at that level to consider Twitter. Despite the novelty of the situation and the respondent’s wishes, the EAT declined to provide general guidance on dismissals relating to the misuse of social media, and Twitter in particular (helpfully defined as ‘an online social-networking service enabling users to send and read short 140-character messages, or tweets’).

In this case, the claimant was a Risk & Loss Prevention Investigator, responsible for about 100 of the respondent’s 300 high street stores, which sold computer games. Each store had its own Twitter account to promote the business. In order to monitor any inappropriate or fraudulent activity, the claimant followed these stores’ Twitter accounts, and soon had up to 65 stores following him. His managers were aware of this.

The claimant posted a series of offensive tweets, covering a range of subjects – dentists, caravan drivers, golfers, Newcastle supporters, the police and disabled people – in foul and abusive terms. One store manager alerted the claimant’s manager, and he was suspended (shortly after which he enlisted the help of his 14-year-old son to take down his Twitter feed). The claimant was summarily dismissed on the grounds of gross misconduct.

The ET held that the claimant had been unfairly dismissed. He was not on Twitter solely for work purposes, he used his own mobile phone to tweet, and he posted in his own time. He admitted many of the comments were offensive but could offer explanations for some.

Further, the ET held that there was nothing to show that a member of the public or the respondent’s staff had viewed these tweets (other than the manager who encouraged people to follow him, and the manager who reported the tweets). The respondent’s disciplinary policy did not specifically state that the inappropriate use of social media in private time might be gross misconduct, although the bullying and harassment policy did cover sending or displaying offensive material on Twitter.

The respondent appealed to the EAT. They argued that the ET had substituted its own view for that of the employer, and the decision it reached had been perverse. The EAT agreed with both grounds and overturned the decision.

Firstly, the ET had not engaged with the respondent’s reasoning. The claimant had not used the restrictions on his Twitter account. He had not created two separate accounts, one for business and one for private use. This was not private usage – he had followed 100 stores, and 65 had followed him.

Secondly, at least one member of staff had seen the tweets and reported them, and the fact that the content was offensive was not in dispute.

Thirdly, whilst the tweets were not derogatory of the respondent or its staff, and did not reveal the respondent as his employer, there was still a clear connection to his work. It was not simply whether it was derogatory, but whether it could be seen as a breach of the harassment policy.

The EAT emphasised that whilst some points would be relevant in other cases, any guidance would be so obvious as to be too general or unhelpful. They also wanted to avoid encouraging a ‘tick-box mentality’. The focus remains on whether the employer’s decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case.

James English is a senior solicitor in the employment team for health and social care law firm Hempsons.