Tweeting offensive

16 March 2015

Schools’ online communications are increasingly important in their day-to-day running, communications and promotion. Anecdotal evidence suggests that most schools encourage staff to engage with social media, but many do not issue clear guidelines or restrictions on that use.

In Game Retail Limited –v- Laws, Mr Laws was employed by Game as a risk and loss prevention investigator with responsibility for 100 shops. He opened a Twitter account for both personal use and to monitor communications from the shops. He ‘followed’ all 100 shops and 65 of them ‘followed‘ him on Twitter. His account did not indicate any other express connection to Game, and he did not engage any restriction settings so his comments were publicly visible.

Mr Laws posted several Tweets which included expletive and obscene language and were understood to be offensive to various groups in society. Mr Laws was dismissed for gross misconduct and brought a claim for unfair dismissal.

The Employment Appeal Tribunal (EAT) concluded:

  • Despite the fact that the Twitter account was a personal account, the Tweets could not be considered to be private because: Mr Laws had failed to engaged restriction settings; he knew he was followed by 65 shops and his comments could be viewed by staff and potentially customers; his comments were not restricted to social acquaintances. This is in contrast to Smith –v- Trafford Housing Trust in 2012 where the High Court concluded Mr Smith was not using his Facebook account for work-related purposes despite the fact that many of his connections were colleagues. This highlights a possible differing view of the public nature of Twitter and Facebook.
  • The company need only conclude that Tweets might have caused offence, and this was evidenced by the fact that a manager reported them and 65 shops had access to them.
  • There was no need for the offensive comments to relate to the employer. It was sufficient to consider whether the Tweets were offensive and whether staff or customers might have read them and it was possible to link him to the company by reference to his Twitter follower/following profile.

Schools should develop social media policies which clearly set out parameters of acceptable use and the disciplinary consequences of stepping outside those guidelines, linking to the disciplinary procedure. When faced with suspected misconduct, the School should follow normal procedures with particular focus on whether:

  • It honestly believes the employee to be guilty of misconduct;
  • It has reasonable grounds for that belief;
  • It has carried out as much investigation as is reasonable in the circumstances.

By Ben Collingwood

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