Is inappropriate use of social media grounds for dismissal?

Can you dismiss employees for putting offensive comments on Twitter?

In Game Retail Limited v Laws UKEAT0188/14, the Employment Appeal Tribunal (EAT) considered whether the dismissal of an employee for tweeting offensive comments from a personal Twitter account was unfair.

Mr Laws was employed by Game Retail Limited as a risk and loss prevention investigator, with responsibility for approximately 100 stores.  He set up a personal Twitter account and began to follow these stores for work purposes.  He was followed in return by 65 stores.

Mr Laws posted several offensive tweets on his account which were reported to Game Retail Limited by a fellow employee. Game Retail Limited dismissed Mr Laws for gross misconduct. At first instance, the Employment Tribunal (ET) held that the dismissal had been unfair mainly because it considered that the tweets had been made within a private forum.

On appeal, the EAT found that the ET had not properly considered whether the tweets had been private.  In particular, the EAT noted that although the tweets were from Mr Laws’ private account, they were publicly visible and the account was followed by 65 Game Retail stores.

Therefore, his tweets could potentially be seen by staff and customers and it did not matter that the comments did not refer to Game Retail or identify Mr Laws as being an employee of that company.

The EAT remitted the case to a newly constituted ET to reconsider the fairness of the dismissal.

Regrettably, although the EAT was asked to provide some general guidance on the use of social media and the principles of unfair dismissal, it declined to do so.  However, in light of the increasing popularity of Twitter, this decision will be encouraging for businesses.

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