Recently, the Employment Appeal Tribunal (“EAT”) heard the case of Game Retail Limited v Laws UKEAT0188/14 and considered the Employment Tribunal’s decision that the employee, Mr Laws, was unfairly dismissed by his employer, the video game retailer Game Retail Limited, when he posted non-work related but offensive comments on his personal Twitter account.
Mr Laws had been employed by Game as a risk and loss prevention investigator, with responsibility for around 100 stores. Mr Laws had setup his own Twitter account in 2012 and subsequently followed the stores he was responsible for, to monitor their tweets. While Mr Laws did not expressly state he was an employee of Game on his Twitter account, one of the store managers actively encouraged his own followers to follow Mr Laws.
In July 2013 another store manager complained about some of the tweets posted by Mr Laws on his Twitter feed. During an investigation it was found that Mr Laws had posted approximately 28 offensive tweets in the period from July 2012 to July 2013. The tweets included expletives and offensive language.
It was held by the EAT that Mr Laws’ tweets could not be considered as private and that the Tribunal had failed to properly apply the range of reasonable responses test. Despite the fact that Mr Laws’ Twitter account was a personal account, the fact that his offensive tweets could be read by 65 stores that were following him, and that he made no attempt to restrict his account or to setup an alternative account purely for private use, meant that his conduct was not private.
The EAT also noted that there was no requirement for the tweets to cause offence or for the derogatory comments to relate to Game specifically, but it was enough for the employer to have thought the tweets might have caused offence.
Furthermore, while the EAT acknowledged that employees must have the right to express themselves, it found that the right to freedom of expression must not infringe upon their employment.
This case highlights the importance of ensuring employers have robust social media policies in place. Employers should expressly inform employees of their expectations in relation to the use of social media and the sanctions that an employee can expect to face if they fail to adhere to these.
From a practical perspective, employers should remind employees to create separate personal and work-related social media accounts and include this within the company’s policies and procedures.
If you wish to obtain any advice on reviewing or implementing an effective social media policy for your company, please contact Jack Khurana, Head of the Dispute Resolution and Employment Department on 0116 289 7000.
Bhavika Mistry, Trainee Solicitor