Sun, 11 Jan 2015
Russell Holland reviews the case of Game v Laws UKEAT/0188/14 which concerned an employee who was dismissed for making offensive “tweets”.
The Claimant was employed as a Loss and Prevention Officer with responsibility for investigating losses, fraud and theft in about 100 stores. Each store had a local manager and its own twitter account where management could make posts. In around July 2012 the Claimant began to follow stores to review if there was inappropriate communication. In July 2013 an unidentified store manager complained that the Claimant had made offensive tweets. An investigation concluded that 28 of the tweets were offensive. It was recognised that the account was personal, but the personal account was followed by Game stores and the Claimant was summarily dismissed and this dismissal was upheld on an internal appeal.
The Employment Tribunal Decision
The Employment Tribunal found that the reason for the dismissal was misconduct and that the belief was reasonable. It concluded that there were some flaws in the investigation process but these were not unreasonable. However the Tribunal did conclude that the sanction of dismissal was outside the range of reasonable response because the Claimant primarily used Twitter for personal reasons, made the tweets in his own time and did explain the context for some of his offensive tweets. It did find contributory fault of 40%.
The Employment Appeal Tribunal
Game appealed to the Employment Appeal Tribunal (EAT) on the grounds of substitution or perversity. The EAT noted that this was thought to be the first EAT case concerning inappropriate use of social media. Ultimately, the EAT upheld the appeal by the Respondent on the basis that there was no real distinction between work and personal use of twitter given the way in which twitter operated, that the tweets were offensive and the Claimant had not restricted his tweets to his personal friends. The EAT contrasted the case with Smith v Trafford Housing  IRLR 86 which was summarised as a case “where a housing manager had been demoted following the posting of religious views on his Facebook page, it was held that his Facebook wall had not acquired a sufficiently work-related context to attract the prohibition against the promotion of political or religious beliefs; and that was so notwithstanding the fact that Mr Smith had identified himself on his Facebook wall as a manager of the Respondent trust, and it was not purely private in the sense that it was not simply available to his invitees because he had a “friends of friends” extension.”
While upholding the appeal and remitting the case, the EAT ultimately declined to give general guidance in relation to social media. It noted that “some of the points we are urged to lay down by way of principled guidance will be relevant in many cases. For example, whether the employer has an IT or social-media policy; the nature and seriousness of the alleged misuse; any previous warnings for similar misconduct in the past; actual or potential damage done to customer relationships and so on. In truth, however, those points are either so obvious or so general as to be largely unhelpful.” The EAT instead reaffirmed Iceland Frozen Foods Ltd v Jones  IRLR 439 commenting that “ The test to be applied by ETs is that laid down in Jones; that is, whether the employer’s decision and the process in reaching that decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case. That test is sufficiently flexible to permit of its application in contexts that cannot have been envisaged when it was laid down. The questions that arise will always be fact-sensitive and that is true in social-media cases as much as others. For us to lay down a list of criteria by way of guidance runs the risk of encouraging a tick-box mentality that is inappropriate in unfair-dismissal cases.”
Points to consider
The key lesson for employees who use twitter is to be aware that their tweets may form the basis of disciplinary action and particular care should be taken when using any form of social media. Employers would benefit from reviewing disciplinary policies so as to ensure that use of social media, whether for work or personal use, is properly covered in their policies.
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