Charles Wynn-Evans considers a recent decision of the Employment Appeal Tribunal and the guidance that may be drawn from it
Most of the case law in the UK on dismissals related to employees' social media activity has been at employment tribunal level and therefore the recent decision of the Employment Appeal Tribunal (EAT) in Game Retail Ltd v Laws (Unfair Dismissal: Reasonableness of dismissal)  UKEAT 0188_14_0311, in which it considered whether a dismissal arising from an employee's use of Twitter should have been found to be unfair, is of interest to those dealing with this sort of issue.
The employee was employed by Game Retail as a Risk and Loss Prevention Investigator and (ironically in the context of this case) part of his role was to monitor inappropriate Twitter activity by employees. To this end, the employee set up his own Twitter account. This account did not identify him directly with his employer. The employee followed 100 of the employer's other stores' Twitter accounts and 65 of these stores followed the employee in return after a store manager identified him as someone to be followed.
After one of the employer's store managers complained that the employee's tweets were offensive, the employer conducted an investigation. It identified 28 tweets as being offensive - adverse comments were made about various groups of people including 'dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people'.
The employee was the subject of disciplinary action which resulted in his summary dismissal for gross misconduct and this sanction was upheld by the employer on appeal. A key factor in the employer's decision to dismiss was the fact that, even though the Twitter account in question was personal, the employee was followed by stores for which he had responsibility as part of his job and so employees and customers of these stores could and did see his offensive tweets.
The employment tribunal decision
The test in an unfair dismissal case is not whether the dismissal was objectively fair or not but, to paraphrase, whether a reasonable employer could conclude that dismissal was an appropriate sanction based on a reasonable investigation, conclusions about what had happened which it genuinely and reasonably reached and a fair procedure. The employment tribunal found that the employee was unfairly dismissed on the basis that the sanction imposed (that of summary dismissal) was outside the 'range of reasonable responses' open to the employer.
The employment tribunal concluded that the disciplinary policy in force did not expressly contain a clause that would have demonstrated to all members of staff that offensive or inappropriate use of social media in private time would or could be treated as gross misconduct. This, combined with the fact that the tweets were sent during the employee's private time, led the employment tribunal to conclude that dismissal was unfair. Nonetheless, the tribunal reduced by 40% the basic and compensatory award because of the employee's contributory fault in conducting himself as he had done.
The EAT decision
The employer's appeal to the EAT was successful and the case was remitted to a different employment tribunal to be reheard. The EAT upheld a number of criticisms of the employment tribunal's reasoning in its original decision. Whilst the employee had used a personal Twitter account to send messages during his own time, those tweets were available to and seen by colleagues and others and so could not properly be considered to be private. The tweets in question were identifiable as being posted by an employee of the employer since he was followed by 65 stores and had been identified as being a person to be followed. The employee's tweets therefore could be associated with the employer and potentially bring its reputation into disrepute. Whilst the EAT was mindful of the balance to be struck between the employer's desire to avoid reputational damage and the employee's right of freedom of expression, on these facts the employment tribunal's conclusion that the employee had engaged just in private social media usage could not stand. The EAT noted that the employee had not made use of the restricted access setting on his Twitter account - it therefore followed that people outside of his acquaintances could view his tweets. A member of staff had been offended by the tweets and complained to the employer. The EAT also observed that the employee could have created two accounts (one with which to follow the employer's other stores and one for personal use) but chose not to do so - and in fact allowed 65 stores to follow his Twitter activity.
Perhaps disappointingly for employers, the EAT did not give any specific additional guidance about how employment tribunals - and by extension employers – should address issues like this other than to observe that relevant issues in the assessment of the fairness of an employer's decision to dismiss an employee as a consequence of inappropriate social media activity can include 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, any actual or potential damage done to customer relationships and (if applicable) the speed with which any offending posts are removed.
The test of whether dismissal is fair in the context of employees' conduct on social media therefore remains highly fact specific. Nonetheless, in addition to reinforcing the point that apparently personal and private use of Twitter and other social media can lead to a fair dismissal depending on the circumstances, this case emphasises the need for employers to develop, publicise, monitor and enforce clear and detailed social media policies which give employees clear guidance as to what is and is not acceptable in both their work-related and private social media activity insofar as it could affect the employer - and even then the employer will still need to be able show that the circumstances genuinely warrant dismissal.
The judgment in the case can read in full here.
Charles Wynn-Evans is a Partner and head of the employment practice at Dechert LLP in London: firstname.lastname@example.org