The recent case of Game Retail Ltd v Laws is a reminder that it is important for employers to have clear rules on the use of social media – and for employees to follow them!
The employee, Mr Laws, was a risk and prevention investigator with responsibility for approximately 100 of Game Retail’s stores in the north of England. Each store had its own Twitter account. Mr Laws created his own, personal Twitter account and promptly followed the accounts of the company’s stores so that he could monitor their activity. Many of those stores followed Mr Laws’ Twitter feed, and one of them encouraged its own followers to do the same.
In July 2013, the company became aware that Mr Laws had been posting inappropriate and offensive tweets on his Twitter feed. The incident was investigated and, following a disciplinary hearing, Mr Laws was dismissed summarily for gross misconduct.
Mr Laws’ claim for unfair dismissal was initially successful, but this was overturned by the Employment Appeal Tribunal, which held that the Employment Tribunal had been wrong to find Mr Laws’ dismissal was unfair. In doing so, the EAT noted the following:
- It would not provide general guidance for future unfair dismissal claims involving social media, as each case depended on its own facts.
- The correct approach to these cases was the application of the range of reasonable responses test, i.e. what was the range of appropriate sanctions open to a reasonable employer in the particular circumstances?
- Relevant factors to take into account included whether the employer has an IT or social media policy; the nature and seriousness of the alleged misuse; any previous warnings for similar misconduct in the past; and actual or potential damage done to customer relationships.
Although the EAT refused to provide general guidance, it did reiterate the general principles that have been established from earlier case law. The public nature of social media means that once a comment is out there, it is difficult to erase completely. Employers will inevitably find themselves in a stronger position in defending an unfair dismissal claim if they have a clear policy setting out their rules on the use of social media in respect of both a business account and a personal account, inside work time or in the employee’s own time.