In Game Retail Limited v Laws the Employment Appeal Tribunal was asked to consider the topical question of the extent to which tweets posted by an employee on his private Twitter account can impact on the employment relationship.
This judgment may be difficult to follow unless you are familiar with Twitter. If you are not, it demonstrates why you should make sure that either you or one of your managers should become so as soon as possible. Also, although it is not intended as guidance in all cases, it is an important reminder to all Twitter users in employment that the use of Twitter, and for that matter other social media accounts such as Facebook, can have far-reaching consequences.
Game is a major high street games retailer with over 300 stores nationwide. Mr Laws was a risk and loss prevention manager responsible for investigating losses, fraud and theft and conducting audits in about 100 stores based in the north of England. Each store has its own Twitter account, accessible by the manager and deputy manager and the accounts were used to promote the retailer through social media.
In 2012 Mr Laws opened his own Twitter account, unconnected with the store accounts. However he followed the stores for which he had responsibility in order to monitor their tweets. His manager understood that he was doing this “to see if anything had happened with communication that had been unacceptable”.
In July 2013 a store manager notified his regional manager about a tweet that Mr Laws had posted. The tweet would not have appeared by default in any of the stores’ accounts. However, it could have been read and retweeted by any of his followers. There was an investigation which involved downloading all Mr Laws’ tweets. 28 were identified as being offensive. Of the 100 stores Mr Laws dealt with, 65 were identified as followers of his account. One tweet by the Preston store manager and presumed to have been retweeted by Mr Laws stated “…if your [sic] a Game or GS shop you need to be following this guy”. It was after this tweet that the other 64 followed his account.
An investigation meeting was held on 22 July 2013 during which Mr Laws admitted that he owned the account and had followed a lot of the stores. he also accepted that people and individual stores could choose to follow his tweets. It was found by the investigator that the tweets were in the public domain, clearly accessible by stores and that some were of an abusive nature. Mr Laws was suspended the following day. In the meantime, with the help of his 14-year-old son, he had taken down his Twitter account. He was charged with gross misconduct on the basis that “between July 2012 and July 2013 you posted a significant number of offensive, threatening and obscene tweets on your Twitter account, which were in the public domain and therefore able to be viewed by anyone on Twitter, including Game employees in stores that follow you or that you follow”. the charge was upheld and Mr Laws was summarily dismissed. His appeal was unsuccessful.
At the Employment Tribunal the Judge concluded that the decision to dismiss did not fall within a band of reasonable responses of a hypothetical reasonable employer (the applicable test). The reasons were that he had not registered on Twitter as part of his job but mainly to communicate with acquaintances outside work, using his own mobile phone and concerning matters unrelated to work. The offensive tweets were posted in his own time outside of work. he also provided explanations for some of the tweets.
There is no doubt that some of the tweets were offensive:
Some ppl are just vile c**** I wouldn’t piss on you if you were on fire but would love to rip your head off and shit down your neck #c****
A&E with me dad useless twats [sic] popped his hip out I better not miss the Sunderland match 2 nite
This week I have been mainly driving to towns the arse end of nowhere .. shut roads and twats in caravans = road rage and loads of fags smoked
These and other tweets were claimed by the employer to demonstrate offence being caused to groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people. However Mr Laws offered explanations including, for example with reference to the A&E tweet, that the derogatory reference was to his father and not A&E staff.
The Employment Judge accepted that Twitter followers would not have been privy to his explanations and might have been shocked or offended by the tweets in question. However, it was never established that any member of the public or of Game’s staff had access to the Twitter feed and thus to the offensive tweets (other than the Preston manager and the person who reported them) and he had not tweeted any reference to the employer or to his work in any way. (Incidentally this conclusion demonstrates a misunderstanding of how Twitter operates.) In addition the disciplinary policy did not expressly contain a clause that demonstrated that offensive or inappropriate use of social media in private time would or could be treated as gross misconduct.
Although he was found to have been unfairly dismissed his awards were reduced by 40% for contributory conduct.
On appeal it was necessary for HH Judge Eady QC to consider just how Twitter operates in practice. Although it was accepted that no one would have received Mr Laws’ tweets unless they chose to follow him it did not follow, as the Employment Judge appeared to believe, that his followers could therefore be assumed to be restricted to his social acquaintances. No restrictions were set on the account and he had not, as he could have done, set up two accounts, one to follow the stores and one for private use. The fact was that his tweets were going out to 65 stores. Also, any customers who had picked up on the account, perhaps as a result of the Preston store manager’s tweet, would have been recipients of the tweets in question. At the same time it was accepted that employees must have the right to express themselves “providing it does not infringe on their employment and/or is outside the work context”.
In this case the account, although private, was used for a work purpose. The Employment Judge had failed to engage with the employer’s concern that the tweets were going out to 65 stores. He substituted what he considered to be relevant rather than what view might be taken by the reasonable employer. Alternatively the decision was perverse in that no reasonable tribunal could have failed to have regard to the fact that Mr Laws had not restricted his tweets to a private audience and knew that they were going out to 65 stores.
As for the offence caused it did not matter that the tweets did not directly concern the employer’s business. The tweets had the potential to cause offence.
Accordingly the matter was remitted for fresh consideration by a different employment judge. While emphasising that this judgment was not intended to provide general guidance, Judge Eady reiterated that the correct approach is whether the employer’s decision and the process in reaching that decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case.