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21.01.15 Dismissal found to be Fair for Private Twitter Use

21 January 2015

The first Twitter case brought to an Employment Appeal Tribunal (EAT), Retail Ltd v Laws (UKEAT/0188/14), held that dismissal for non-work related comments on a personal Twitter account is potentially fair.

Mr Law had been employed by Game Retail Limited since 1997. Mr Laws’ Twitter account did not specifically link him to Game but the EAT referred to the fact that his account was followed by 65 Game stores. In July 2013 a local store manager notified a regional manager within Game about offensive tweets posted by Mr Laws on his Twitter feed.

Mr Laws did not deny he posted the tweets but argued he did not give consent for any of the store managers to follow him. Game concluded that Mr Law’s tweets were in the public domain and could be accessed by the stores. Game decided that Mr Laws’ tweets were “offensive, threatening and obscene” which amounted to gross misconduct and he was summarily dismissed. Mr Laws claimed unfair dismissal.

The Tribunal held the dismissal was unfair, however the EAT found that the Tribunal had failed to take into account the public nature of Twitter. Mr Laws had failed to make any attempt to restrict his account or to set up an alternative account for private use. The EAT concluded that the Tribunal’s judgement could not be upheld but declined to give general guidance about Twitter cases, as requested by Game. The EAT reiterated the relevant test to be applied by Tribunals in unfair dismissal cases 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.

The EAT remitted the case to a fresh Tribunal to decide whether the decision to dismiss was within the range of reasonable responses.

Although Mr Laws did not identify his employer on his Twitter page, the fact that comments are posted outside of work time, from a personal account, will not mean employees are immune to disciplinary action. Consideration should be taken into account in regards to whether the social media was private or not, taking into account privacy settings, followers and connections. If comments are derogatory about the employer then they could still warrant disciplinary action. Employers can consider whether employees using social media are infringing the company’s social media policies as well as other policies such as bullying and harassment. It is important to ensure you have a Social Media Policy in place so employees are clear about actions that may be taken against them if they are found to have posted questionable comments on social media.