The UK Employment Appeal Tribunal has upheld an appeal from a games retailer that sacked an employee for making offensive comments on Twitter.
The Newcastle-upon-Tyne Employment Tribunal initially ruled the employee, referred to as Mr Laws, was unfairly dismissed from his job as a risk and loss prevention investigation manager at Game Retail, after he was fired for misconduct when a co-worker complained of his use of the social media platform.
Laws initially opened a Twitter account sometime before July 2012 for personal use but chose to follow 100 Game Retail stores from his account, 65 of which followed him back. The tribunal heard over time, he started using his Twitter account for limited work purposes as well as personal and followed the stores he was responsible for managing to monitor any inappropriate activity by employees of those stores.
A co-worker complained to the company many of Laws’ Twitter posts were “offensive, threatening and obscene”, referring to diatribes he launched against various groups, including football fans, dentists and caravanners.
But the tribunal ruled Laws had not registered for Twitter as part of his job or used the platform as part of his job. It ruled he was unfairly dismissed because the offensive tweets were not related to work, did not identify him as a Game Retail employee and were made during the employee’s own time.
Also in the employee’s favour was Game Retail’s lack of social media use policy that explicitly stated misuse of social media in an employee’s own time would be regarded as misconduct.
However, the UK Employment Appeal Tribunal sided with Game Retail in November and sent the case back to another tribunal to be reheard.
In the second ruling, the tribunal decided the Newcastle-upon-Tyne Employment Tribunal had not given sufficient consideration to the “public” nature of Twitter, or Laws’ decision not to use Twitter’s privacy setting to restrict who could see his tweets.
While the tribunal acknowledged Laws’ claim that he only intended to use his Twitter account for personal use, it said that claim needed to be balanced by the fact he chose to follow 100 Game Retail stores via the account and 65 of those stores followed him back.
Employment lawyer and partner at M+K Lawyers, Andrew Douglas, told SmartCompany the use of social media by employees has repeatedly come before Australian courts and although cases in Australia have tended to involve Facebook, “Twitter is just another social media platform” and “the principles are identical”.
“If you use a social media platform in or out of work in a way that is threatening to people at work, abusive or bullying or damaging to the brand of your employer, it is highly likely it will end in disciplinary action,” Douglas says.
But Douglas says employers of all sizes must have an “explicit social media policy” in order to be able to take disciplinary action against employees who misuse social media outside of work.
“Introduce a policy that clearly stipulates a code of conduct and makes clear the responsibilities of employees,” says Douglas, who says it is also essential for employees to be trained under the policy.
Douglas says this is an area of employment law that has been developing for some time.
Cases initially dealt with the distinction of what is personal and what is work-related Facebook use, before moving on to questions of restraint of trade clauses when it comes to using a professional platform such as LinkedIn. Contemporary cases are now dealing with Twitter use by employees.
“This case shows that the familiar becomes the law,” Douglas says.
SmartCompany contacted Game Retail but did not receive a response prior to publication.