How did the EAT approach the fairness of a dismissal for posting offensive tweets?

The EAT has recently found that it was, indeed, fair to dismiss an employee for making offensive tweets in a case which highlights the considerations that need to be taken into account by employers.

This is in the decision of Game Retail Limited v. Lawes.

We have previously set out the background to cases such as this.

Background

Mr Lawes was employed by Game Retail Limited as an investigator. Game Retail had a number of clients, who were retail stores. Mr Lawes had responsibility for over 100 of them.

Mr Lawes opened a Twitter account in 2012, and was encouraged to do so by his employer. At the time of this case, 65 of the stores were following him on Twitter.

The Employment Tribunal who initially heard this case found, as a matter of fact, that abusive and offensive tweets had indeed been posted by Mr Lawes. This was not disputed.

However, the Employment Tribunal also found that it had been unfair of Game Retail to dismiss him, because the tweets were posted for private use and were a matter of Mr Lawes’ freedom of expression, and Game Retail did not have a disciplinary policy that clearly stated private use of Twitter could amount to gross misconduct. This much was disputed before the Employment Appeal Tribunal.

The EAT did not agree with the Employment Tribunal on the unfair dismissal point. They found that it was plain wrong that the tweets had been for private use only, as clients of the employer numbered many of Mr Lawes’ followers. There was also more than a mere “theoretical” risk of the public seeing the tweets: in this case, a member of staff had given evidence that they had actually seen them.

On this basis, the EAT decided that the dismissal had indeed been fair.

Implications

When asked, the EAT refused to set out any general guidance in social media cases such as this.

However, it will always be relevant whether or not there was a policy dealing with use of social media, and employers are encouraged to put one in place.

The EAT also clearly found it relevant that the right of the employee to privacy and freedom of speech should be balanced against the right of the employer to protect its reputation. The extent to which the comments are broadcast will always be relevant in these cases.

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