The EAT has held that a dismissal for offensive tweets by an employee on his personal Twitter feed was potentially fair and that a tribunal had incorrectly applied the range of reasonable responses test.
In Game Retail Ltd v Laws, Mr Laws was employed by Game in a role which had responsibility for 100 of its stores. Mr Laws had a personal Twitter account, which was followed by a number of Game's stores across the country. He posted a number of tweets that were considered potentially offensive, including about towns he travelled to.
An employment tribunal found that Mr Laws had been unfairly dismissed on the basis that the decision to dismiss fell outside the band of reasonable responses. Specifically, his tweets were posted for private use; it was not established that any member of the public or employee had seen them or associated the tweets with Game; and Game's disciplinary policy did not clearly state that inappropriate personal social media use may lead to dismissal.
The EAT disagreed with the tribunal's conclusion. It held that the tribunal had not properly taken into account that Mr Laws had not put restrictions on his privacy settings; Game's concerns that Mr Laws' tweets would be seen by the Game stores that followed his feed; or his knowledge that stores and potentially customers could see his tweets. The EAT also held that the offensive tweets did not need to relate to Game or to have identified himself as an employee. The tribunal should have focussed on whether the tweets were offensive and whether other staff or customers might have read them.
Whilst the EAT recognised Mr Laws' right to freedom of expression, this was to be balanced with Game's desire to remove or reduce reputational risk from the social media use of its employees. Further, there was no requirement for Game to show that the tweets had actually caused offence, only that Game was able to reach the conclusion that they may have.
Unhelpfully, the EAT declined the opportunity to set out general guidance on social media and unfair dismissal, but instead reiterated that the correct approach was for a tribunal to apply the range of reasonable responses test, as with all unfair dismissal cases. It then remitted the case to a different employment tribunal to decide the case.
Point to note -
Although the EAT did not use the opportunity to give guidance on social media misuse dismissals, its criticisms of the way in which the range of reasonable responses test was applied by the tribunal in this case does provide some help to employers. It also serves as a reminder that employers should make it clear to employees what online conduct it considers to be unacceptable, which can extend to personal social media use.