First Twitter dismissal appeal holds warning for employers
So can you dismiss an employee who tweets offensively - even if it's not about your organisation, clients/customers, or employees?
So can you dismiss an employee who tweets offensively - even if it's not about your organisation, clients/customers, or employees? Possibly, says the Employment Appeal Tribunal in the first appeal it has heard following a twitter dismissal. Whilst the employer's appeal succeeded in the case of Game Retail Ltd v Laws, the Judgment itself suggests dismissal will only be fair if the Twitter-use encroaches on the individual's employment or is in a work-related context.
Mr Laws was a risk & prevention officer for Game responsible for 100 of their stores. He was a Twitter user who followed all of those stores own Twitter-feeds, and 65 followed him in return (in most cases after one store manager recommended they should do so). He was dismissed for posting 28 abusive tweets which were found to be offensive including to "dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the Police and disabled people", including some which used foul and abusive language. The tweets had nothing to do with his job, so was the dismissal unfair?
The EAT has overturned the Tribunal’s decision that it was. This Tribunal's conclusions were held to be unsafe, based as they were on a mistaken finding about the posts as private. The EAT emphasised the public visibility of the tweets and the context of Mr Laws being followed by the stores, with at least one member of staff having raised concerns about them. The EAT declined to provide general guidance, but the Judgment confirms that some relevant factors will be: whether the employer has a social media or relevant IT policy; the nature and seriousness of the alleged misconduct; the existence of previous warnings; and the potential damage done to customer/client relationships. However each case will always be fact-sensitive - is this employer's decision to dismiss one which falls within the range of reasonable responses of a reasonable employer?
The key warning comes with the importance placed by the EAT on the tweets needing to have a work-related context. It said, "Generally speaking, employees must have the right to express themselves, providing it does not infringe on the employment and/or is outside the work context".
What does this mean for me?
Abusive tweets by your employees might be grounds for a fair dismissal, but don't assume they always will be. When investigating such issues or reaching a disciplinary decision you must consider carefully why dismissal is an appropriate sanction? Why does the tweet have a work-related context? Some relevant questions will be: does the post or twitter feed refer to your organisation; is the user following or followed by your organisation, clients, customers, or colleagues; what does your policy say; and what is their role? You need to balance the employee's right to freedom of expression, by deciding if the posting is work-connected.
We know that employee social media use is a challenge with which many of you are grappling. Twitter use presents its own challenges with postings usually being publicly available and retweeting meaning that they can be widely viewed. What this Judgment really emphasises is that the keys to a fair dismissal remain unaltered by this modern context.