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Twitter is not a Game

23rd February, 2015

The use of social media can cause controversy in the work place, with many employers adopting social media policies to protect the firm’s reputation from derogatory comments made or associated with these comments.

In Game Retail Ltd v Laws, a manager of one of the stores made a derogatory comment from his own personal Twitter account.  The comments made were potentially offensive but did not name anyone in person nor was a comment made about his employer.

Game Retail Ltd argued that although the Twitter account was a personal account, the claimant followed 100 stores and in turn 65 stores had followed him. As a result the manager was dismissed for gross misconduct and brought a claim for unfair dismissal.

The Employment Tribunal upheld the dismissal claim on the basis that the dismissal was unfair because the employer’s policy did not detail that inappropriate use of private social media could amount to gross misconduct.  Secondly the Employment Tribunal stated that it had not been established that a member of the public or other employees had access to the Twitter feed.

This decision was appealed and went to the Employment Appeals Tribunal (EAT).  The EAT held that the previous judge had failed to take full account of the public nature of Twitter when finding that an employee’s dismissal for posting offensive tweets was unfair and as a result overturned the original decision. The EAT implied that Twitter has a more public nature than Facebook and as a result could make dismissals relating to offensive tweets easier to defend in comparison with  comments made on Facebook.

The EAT Judge did not offer any general guidance regarding dismissal for inappropriate use of social media however, it was stated that each case is “ fact sensitive” and as a result the band of reasonable responses test would need to be applied.

From a practical perspective, employers should remind employees to create separate personal and work-related Twitter accounts and employers should be explicit about their expectations as to the use of social media and the sanctions that an employee can expect to face if they fail to adhere to these.

For further information and advice on Employment Social Media Policy or the consequences of  using social media in the work place, please contact Helen Watson on 01244 405565 or send an email to [email protected]

 

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