Offensive Tweets and Unfair Dismissal

In a case which dealt with the issue of misuse of Twitter by an employee in the context of an unfair dismissal claim (Game Retail Limited v Laws), the Employment Appeal Tribunal (EAT) declined to give general guidance to assist with future decisions on this topic but the decision nevertheless gives an indication of the correct approach to the facts in each case.

Mr Laws had worked for Game Retail Limited since 1997. At the relevant time, he was its risk and loss prevention investigator, which involved investigating losses, fraud and theft and conducting audits in the 100 stores in the north of England for which he was responsible. In 2012, he opened a personal Twitter account which he also used to follow tweets from those stores in order to monitor inappropriate activity by other employees. Quite early on, the manager of the Preston store posted a recommendation that those interested in gaming and games shops should follow Mr Laws on Twitter, after which a further 64 Game Retail stores started to do so.

In July 2013, an unidentified store manager notified one of Game Retail's regional managers of offensive tweets on Mr Laws' Twitter feed and, following an investigation into his conduct and a subsequent disciplinary hearing, he was summarily dismissed.

The Employment Tribunal (ET) found that the decision to dismiss Mr Laws did not fall within the band of reasonable responses open to a reasonable employer in the circumstances. He had registered on Twitter primarily in order to communicate with acquaintances outside work, he had used his own mobile phone and the tweets in question had nothing to do with his work. The offensive material had been tweeted in his own time and he had provided explanations for some of the content. The ET stated that there was no evidence that any member of Game Retail's staff had access to the material or had been offended by it or raised a complaint. Furthermore, it found that the risk that a member of the public might view the posts was merely 'theoretical'.

Game Retail appealed on the grounds that in finding that the sanction was too harsh, the ET had substituted its own view for that of the reasonable employer and/or the conclusion it had reached based on the evidence before it was perverse.

The EAT overturned the ET's decision. The suggestion contained in its reasoning that Mr Laws' followers were restricted to social acquaintances was incorrect. He had not made use of the restriction setting on his Twitter account nor sought to use different accounts for work and private use. There was evidence that some 65 of his employer's stores followed his posts and the ET's findings were also inconsistent with the fact that it had been a member of staff who had raised the issue of the nature of Mr Laws' tweets. It was also likely that customers of the stores that followed him on Twitter would have seen the tweets in question. The issue was not restricted to whether the tweets were derogatory of his employer but whether they were offensive and might be seen by other employees, contrary to the company's harassment policy, or by customers or potential customers. The EAT found that the ET's findings did 'not seem to engage with any of these points' or that it had substituted its own views as to what was important rather than considering 'what the reasonable employer might have concluded'.

The EAT ordered that the case be remitted to a new ET to reconsider the range of reasonable responses test and its application in respect of the sanction.

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