Social Media can get you into trouble

  • By The Alchemist About Town
  • 19 Aug, 2016

People stuff

Ok, you set up your social media account ( Facebook, Twitter and so on..) separate from your work and you do not identify yourself as working in a particular company. You have a rant or a few which of course all people you follow and follow you can see. People are offended and you think, so what? I am outside work and I can say what I like....

Well, think again...

In Game Retail Ltd. v Laws Mr Laws was employed by Game in a role which had responsibility for 100 of its stores. Mr Laws had a personal Twitter account, which was followed by a number of Game's stores across the country. He posted a number of tweets that were considered potentially offensive, including about towns he travelled to.

An employment tribunal found that Mr Laws had been unfairly dismissed on the basis that the decision to dismiss fell outside the band of reasonable responses. Specifically, his tweets were posted for private use and the Company's disciplinary policy did not clearly state that inappropriate personal social media use may lead to dismissal.

The Employment Appeal Tribunal disagreed with the tribunal's conclusion. It held that the tribunal had not properly taken into account that Mr Laws had not put restrictions on his privacy settings/ Game's concerns that Mr Laws' tweets would be seen by the Game stores that followed his feed/ or his knowledge that stores and potentially customers could see his tweets. The EAT also held that the offensive tweets did not need to relate to Game or to have identified himself as an employee. The tribunal should have focussed on whether the tweets were offensive and whether other staff or customers might have read them.

The EAT recognised Mr Laws' right to freedom of expression although this was to be balanced with Game's desire to remove or reduce reputational risk from the social media use of its employees. Further, there was no requirement for Game to show that the tweets had actually caused offence, only that Game was able to reach the conclusion that they may have.

The EAT reiterated that the correct approach was for a tribunal to apply the range of reasonable responses test, as with all unfair dismissal cases. It then remitted the case to a different employment tribunal to decide the case.

If you are an employer, please do ensure you have an appropriate Social Media policy which covers this type of eventuality; if you are an employee please do remember that what you say or do can come back to harm you.

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