More and more we find ourselves advising on issues arising out of the use of social media. However there is little case law to rely on or guide us when trying to apply existing legal principles, such as those relating to unfair dismissal.
In Game Retail Ltd v Laws the problem being addressed was whether a dismissal arising out of an employee’s private use of twitter (posting offensive tweets) was unfair.
Whether a dismissal is unfair will be determined by the long established test of whether dismissal was within the range of reasonable responses available to the employer. In this particular case the tribunal said it fell outside of this range. Understanding the facts of the case will help understand the conclusions.
Mr Laws worked with the respondent as an investigator with responsibility for over 100 retail stores. In July 2012 he opened a personal Twitter account and began to follow the Twitter accounts of those stores in order to monitor their activity (although his account did not specifically associate him with GR Ltd). In July 2013 an anonymous store manager notified one of GR Ltd’s regional managers about allegedly offensive and abusive tweets that Mr Laws had posted. GR Ltd conducted an investigation and found that Mr Laws was guilty of gross misconduct. It summarily dismissed Mr Laws and he complained to a tribunal arguing he had been unfairly dismissed.
The employment judge upheld Mr Laws’ claim noting that although customers and employees of GR Ltd might have been shocked or offended by the tweets, it was unfair to dismiss for two reasons. First, the tweets were posted for private use and it had never been established that any member of the public or employee of GR Ltd had access to Mr Laws’ tweets or associated him with GR Ltd. Secondly, GR Ltd’s disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct. GR Ltd appealed to the EAT.
The EAT allowed the appeal. The EAT noted that the tribunal judge’s finding that Mr Laws’ Twitter use was not specifically work-related failed to engage with GR Ltd’s reasons for dismissing him. The EAT observed that whilst there is a balance to be drawn between an employer’s desire to remove or reduce reputational risk from social media communications by its employees, and the employee’s right of freedom of expression, the employment judge did not properly test the question of whether Mr Laws’ usage was indeed private. It was said that the tribunal judge had failed to consider the implications of Mr Laws’ followers including 65 stores and the fact that he was knowingly posting the offending tweets in that context. Furthermore, the employment judge’s conclusion that there was merely a ‘theoretical’ risk of employees or members of the public seeing Mr Laws’ tweets was inconsistent with the fact that a member of staff had seen his tweets and reported them. The EAT accordingly held that the judge’s decision could not stand and so remitted the case to be heard by a different judge.
The courts are still catching up with technological and social media developments and your policies also need to be frequently updated to reflect such developments. This case accepted that clear policies about social media use would be beneficial. Given the increasingly blurred lines between personal and professional life, such policies should ideally address all types of use, not just work related use.
It is also worth noting that GR Ltd urged the EAT to provide general guidance on such cases but it declined to do so. It simply reminded the parties of the standard test of ‘range of reasonable responses’ and pointed out that in social media cases, as in others, the issues will always be fact-sensitive.
For more information, help or advice please contact Tim Davies on 0191 211 7927.