TO TWEET OR NOT TO TWEET?
The rise of social media has led to a number of issues in the employment context.
In recent years employers have had to deal with issues relating to employees use of Facebook, twitter, LinkedIn or other social media sites either during working hours or in their own personal time particularly where references are made to their employment.
There have been a number of employment tribunal claims dealing with dismissals based on social media misuse. Cases such as:
Preece v JD Wetherspoons plc where the employment tribunal held that a pub manager had been fairly dismissed for gross misconduct having made inappropriate comments on Facebook about her customers in breach of the employer’s email and internet policy.
Teggart v Tele Tech UK Limited where the Northern Ireland industrial tribunal held that an employee who posted obscene comments about a colleague on his Facebook page was fairly dismissed.
This week we received the EAT judgment in Game Retail limited v Laws. This case centred around the use of a personal twitter account held by Mr Laws (the claimant). Mr Laws posted offensive tweets and his employer was notified of this. Following an investigation Mr Laws was dismissed for gross misconduct. He brought an unfair dismissal claim and the employment tribunal found the dismissal to be unfair. The judge considered that:
1. The tweets were for private use and it had never been established that any members of the public or employees of the company had access to his tweets or associated his account with the company; and
2. That the company’s disciplinary policy did not clearly state that inappropriate use of social media in private time could be treated as gross misconduct
The company appealed and the EAT allowed this on the basis the tribunal judge had failed to consider the implications of Mr laws followers, which included 65 company stores and the fact he was knowingly posting the offending tweets.
The case has been remitted to the employment tribunal to be reheard by a different judge.
Unfortunately the EAT refused to lay down any guidance on dismissals for social media misuse, stating instead that cases are fact-sensitive and the reasonableness of any dismissal will need to be assessed in each case.
Whilst we don’t have any guidance from the EAT, this case and its predecessors are stark reminders to employers of the need to:
1. Implement policies on social media and IT and electronic communications;
2. Link the policies to the disciplinary procedure, to ensure that any breaches of the policies will result in disciplinary action up to and including summary dismissal;
3. Make it clear that policies on social media use apply during and outside working hours and whether using work PC or personal devices
4. Deal with any misuse of social media; and
5. Act consistently and fairly when applying any policy.
By doing so employers should hopefully minimise the risk of successful claims in an employment tribunal.
For further advice contact Marie Walsh on 0113 3571317 or by email at marie@consilialegal.co.uk