Can private "tweets" justify dismissal?
Yes, but depending on the circumstances, said the Employment Appeal Tribunal (EAT) in the case of Games Retail Ltd –v- Laws.
Mr Laws was responsible for over 100 retail stores. He opened a private Twitter account and followed the Twitter accounts of these stores as a means of monitoring their progress. He was in turn followed by 65 of these stores after a local store manager recommended that they do so. Mr Laws was later summarily dismissed following a complaint by another store manager that Mr Laws had posted offensive and abusive tweets from his private Twitter account. Mr Laws’s Twitter account did not affiliate him with his employer, nor did his contract of employment state that inappropriate use of social media in private time could be treated as gross misconduct. Nonetheless, the EAT concluded that it was reasonable for the employer to found upon this private use of social media as a reason justifying Mr Laws’s dismissal.
In producing its judgement, the EAT highlighted that it was necessary to consider whether the employee’s use of social media was indeed truly private. As Mr Laws posted the tweets in full knowledge that 65 stores followed his account, and because the tweets were seen and reported by another member of staff, his account could not be considered to be truly private. Consequently, his use of social media could be relied upon by his employer as constituting gross misconduct.
So, does this mean that as an employee you should rush off and delete your social media accounts for fear of offending your employer/colleagues and losing your job? Or, that as an employer, you can without fear of consequences dismiss an employee who posts offensive messages on their social media account? The short answer is No, but in reality it will not be as straightforward as that. The EAT declined to lay down general guidance on cases of gross misconduct involving the use of social media, stating instead that every case will depend on its own individual facts and circumstances. Ultimately therefore, whether an employee’s use of social media can be relied upon as a reason for dismissal will depend on whether the employer in dismissing the employee acted “reasonably”. As such, restraint and common sense remain the best guidance for both employers and employees when considering the use and effect of social media.