The Employment Appeal Tribunal (EAT) went some way towards answering this question in the case of Game v Laws UKEAT/0188/14. This case highlights the importance of employers taking a proactive approach to use of social media by their employees both in a professional and personal context.
Mr Laws was employed by Game as a Loss and Prevention Officer. Part of his role was to monitor the Twitter accounts of individual Game stores in his region to review if there was any inappropriate communication. Mr Laws began following stores on his personal Twitter account and around 65 stores had begun following him in return.
Game were alerted to around 28 offensive messages which Mr Laws had tweeted on a range of subjects including rival football fans, dentists, caravan drivers, the police and his former sister in law. Mr Laws was dismissed and brought a claim for unfair dismissal.
The Employment Tribunal (ET) at first instance had considered that the decision to terminate Mr Laws’ employment was too harsh and did not fall within the “range of reasonable responses” due to the fact that the posts were made on his own time, did not refer to his employer and he used Twitter primarily for personal communications.
The EAT upheld the appeal by Game and remitted the case back to the ET to decide whether the dismissal was reasonable. In doing so they considered that the tweets were not private in nature as Mr Laws had not used any privacy settings on Twitter and as a result (and due to the very nature of Twitter) the tweets were open to be viewed by Game employees and customers (who may follow their local store) as well as the wider public. The EAT were reluctant to issue general guidance on social media cases as they will be fact sensitive but did outline what they considered to be relevant factors in such cases, which include
- whether the employer has a social media policy
- the nature and seriousness of misuse
- any previous warnings for misconduct
- any actual or potential damage to customer relationships.
Employers should ensure there is appropriate guidance in place for employees including a social media policy and clear disciplinary procedures for any breach.
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