The use of social media (e.g. Facebook, Twitter etc) is increasing and employers cannot ignore the potential effect of it. As employers you need to know what action you can take against employees who commit social-media related misconduct either in the course of their work or in their personal life.
There has been a recent case in the Employment Appeal Tribunal (“EAT”) which gives some help in this regard, although employers should be aware that all cases are fact sensitive.
In Game Retail Limited –v- Laws, Mr Laws was employed as a risk and loss prevention investigator with responsibility for over 100 retail stores. 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 his employer. One local manager in fact tweeted an encouragement to other stores to follow Mr Laws and 65 stores did so.
About 12 months after the Twitter account was opened, an anonymous store manager notified one of Game’s regional managers about allegedly offensive and abusive tweets that Mr Laws had posted. An investigation was conducted and Mr Laws was found guilt of gross misconduct. He was summarily dismissed and Mr Laws made a complaint to an Employment Tribunal for unfair dismissal.
At first instance the Employment Tribunal Judge found in Mr Laws favour. He examined the tweets in detail and accepted that customers and employees of Game might have been shocked or offended by them. However he considered that two main factors made the dismissal unfair. Firstly the tweets were posted for private use and it had never been established that any member of the public or employee of Game had access to Mr Law’s tweets or associated him with Game and secondly the employer’s disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct.
Game appealed to the EAT. The EAT allowed the appeal and remitted the case back to the Employment Tribunal for a re-Hearing by a different Judge.
The EAT held that the Judge’s suggestion that Mr Laws’ followers were restricted to social acquaintances was wrong. The 65 stores that had followed Mr Laws and would have seen the tweets and any customers who had picked up on Mr Laws’ account, perhaps after his account was recommended by a local manager, would have seen them to. Although there is a balance to be drawn between an employer’s desire to remove or reduce reputational risks from social media communications by its employees and the employee’s right of freedom and expression, and although it might be relevant that social media use is intended to be private, in this instance the Employment Judge did not properly test the question of whether Mr Laws’ usage was indeed private. He had failed to consider the implication of Mr Laws’ followers including 65 stores and the fact that he was knowingly posting the offending tweets in that context.
Daven Naghen, head of our employment team, has commented as follows upon this case:-
“In this instance the “offensive” tweets appear to have been seen by at least one colleague of Mr Laws, and were also readily accessible for other co-workers as well as possibly customers. The nature of the tweets were therefore potentially very damaging to the reputation of the employer, and therefore there may have been good grounds for a dismissal here with the following of a proper procedure.
It would have undoubtedly helped the employer here had there been a clear social media policy giving guidance on the sort of conduct that is acceptable or non-acceptable on social-media sites.
Tribunals will take into account many factors in assessing whether a social-media related dismissal is fair. Such factors will include:-
(i) The nature and severity of the comments made by an employee;
(ii) The subject matter of those comments;
(iii) The extent of any actual or potential damage to the employer’s reputation;
(iv) Whether there has been a breach of confidentiality;
- Whether the employer has a social media policy and whether employees have been
given training in that policy; and
- Whether the comments made by the employee were made during working hours
and/or using the employer’s equipment.
In any such situation the employer should ensure that a full and fair disciplinary process is followed and that a fair and objective consideration is given to these factors in order to minimise the risk of an employee making a successful claim for unfair dismissal.”
If you need guidance regarding social-media related misconduct or advice in respect of a social-media policy then please contact Daven of either 01775 722261 or email grant at firstname.lastname@example.org or write to or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.