As many of you will be aware, social media in the workplace is one of my particular areas of interest, and although it is something we are increasingly being asked to advise on, there is relatively little binding case law guidance (as most cases have not progressed to appeal).
The case of Game Retail v Laws has just been decided by the Employment Appeal Tribunal (EAT) and the judgment made interesting reading.
Mr Laws was dismissed for gross misconduct by Game Retail after he made offensive comments on his personal Twitter account, most of which were not work related. He argued that his dismissal was unfair.
At the Employment Tribunal his unfair dismissal claim succeeded – in particular, the Tribunal relied upon the fact that his Twitter account was a personal one with no reference to his employer, that the tweets were made in his own time, and that Game Retail did not have a policy stating that inappropriate social media use may result in dismissal.
Game Retail appealed to the EAT. They argued that it was immaterial that the Twitter account was a personal one. Mr Laws had, as part of his role as a risk and loss prevention investigator, ensured that his personal Twitter account followed the Twitter accounts of 65 of the company’s stores, and those stores also followed him back. His tweets had not been set to private and he was therefore well aware that the stores (and potentially also customers of the company) could see what he had tweeted. In these circumstances, Mr Laws cannot have had a reasonable expectation that his tweets were private.
The EAT agreed and upheld the appeal. They concluded that the Tribunal had not properly considered whether Game Retail had acted reasonably, and that Mr Laws’s tweets could not properly be considered private. There was no need for Game Retail to have to prove that offence had been caused. The EAT declined to give any particular guidance on social media use in the workplace, saying that it would not be helpful, and that it was really a question of applying the normal ‘band of reasonable responses’ test.
In some ways the outcome in this case contrasts with the Tribunal level case we covered in October (Blue v Food Standards Agency) where Facebook activity outside work was not found to be grounds for dismissal. However, the circumstances of the cases are very different, not least the nature of the comments made. In both cases however the employers did not have policies governing social media use outside work. Although Game Retail ultimately succeeded in defending this case, they would have been in a better position had they ensured they had a properly drafted social media policy in place which specified their expectations for social media use (both within and outside work) and what the consequences would be if the expectations are not met.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).