Labour & European Law Review Weekly Issue 407 18 February 2015
Although employees have a right to use social media, the Employment Appeal Tribunal (EAT) held in Game Retail Ltd v Laws that it has to be balanced with their employers’ need to minimise any risk to their reputation from communications that could be read by customers and other employees.
Mr Laws was the risk and loss prevention investigator for Game, with responsibility for approximately 100 of its stores based in the north of England. All the stores had Twitter accounts which they used as tools for marketing and communications. Some time prior to July 2012 Mr Laws started his own, personal Twitter account and began to follow the stores for which he had responsibility in order to monitor inappropriate or unacceptable activity by other employees.
He was then suspended in July 2013 for having “posted a significant number of offensive, threatening and obscene Tweets” on his Twitter account. As these were “in the public domain and therefore able to be viewed by anyone on Twitter, including Game employees in stores that follow you or that you follow”, he was summarily dismissed for gross misconduct on 29 July 2013. He subsequently brought a claim of unfair dismissal.
The employment tribunal judge concluded that the decision to dismiss Mr Laws did not fall within the band of reasonable responses. Firstly, Mr Laws had registered on Twitter mainly to communicate with acquaintances outside work, using his own mobile phone. Secondly, he only tweeted offensive material in his own time, not work time. Thirdly, although he did not dispute that some of the tweets were offensive, he was able to provide explanations for at least some of them.
Although customers or other employees were not privy to these explanations, equally Game could not show that any of them had accessed his Twitter feed other than the manager who reported him. In addition, Game’s disciplinary policy did not state that offensive or inappropriate use of social media in private time could be treated as gross misconduct. He therefore upheld Mr Laws’ claim and Game appealed.
Accepting that a balance has to be drawn between the desire of employers to minimise the possibility of risk to their reputation from social media and employees’ right of freedom of expression, the EAT held that the tribunal had failed to address whether this was, in reality, a case of private usage.
For starters, Mr Laws could have created two separate accounts - one for following the stores and the other for purely private use - but had not done so. Nor did he make any attempt to use the restriction settings on his account. In addition, the tribunal judge himself had found that about 65 of the stores were following Mr Laws’ account and would therefore have seen the tweets he sent out. Likewise, any customers who had picked up on his account.
The employment judge’s conclusion that there was only a “theoretical risk” that a member of the public or a member of staff might be offended by the tweets was contradicted by his own finding that a store manager felt sufficiently strongly about the tweets to take the matter further.
Finally, the judge’s conclusion that Mr Laws had not posted anything derogatory about his employer was perverse, given that he was following 100 Game stores and 65 were following him. The issue was not whether the material was derogatory about Game, but whether it was, by its very nature, offensive and might be contrary to its harassment policy.
It therefore held that the decision should be remitted to be re-heard by a different judge.