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Tweets result in fair dismissal

Posted on 7th October 2015
Case law

Can social media misuse which does not identify your employer form the basis of a fair dismissal?

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The factors to consider in cases involving dismissals for social media use are not unique

Game Retail Ltd v Laws EAT 2014

The facts

Mr Laws used a private twitter account to follow and monitor over 100 of Game Retail’s stores’ accounts. His role was risk and loss prevention investigator.

His account did not identify him as an employee of Game Retail but his account was followed by 65 of the stores. His account had no privacy restrictions set and his tweets were publicly available.

A manager reported tweets by Mr Laws to Game Retail and his account investigated. 28 of the tweets were considered offensive and Mr Laws was dismissed for gross misconduct. He was considered to have breached a policy which prohibited making offensive comments…or derogatory or stereotypical remarks.

Mr Laws largely accepted that the tweets in question were offensive but challenged that dismissal was a reasonable sanction. The employment tribunal concluded that dismissal as a sanction was unfair.

The decision

The Employment Appeal Tribunal concluded the employment tribunal decision could stand. The case has been sent back to be reconsidered but the EAT reached this decision:

  • Despite the twitter being a personal account with no evident link to Mr Laws’ employment and that the tweets were posted in his own time.
  • As it was possible actual damage could have been caused (even if none had in fact been caused) to its reputation given Mr Laws’ followed over 100 stores and around 65 followed him back.
The EAT refused to give general guidance but did comment that factors such as:-

1. Whether the employer has an IT or social media policy;

2. The nature or seriousness of comments made;

3. Previous warnings; and

4. Actual and potential damage

were all factors to be taken into account.

These are well known factors and are not unique.

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