18 December 2014 | Reading time: 2 minutes
Twitter is used as a marketing tool by many businesses. Although twitter can be used with great success to reach consumers, it is not immune from misuse and controversy. In the United Kingdom the Employment Appeal Tribunal (Appeal Tribunal) handed down the first appellate level decision on the misuse of a twitter account.
Ready, aim, fire(d).
The Respondent was employed by Game Retail Limited, which has over 300 stores in the UK. His twitter profile was used for monitoring the different stores’ use of twitter, as well as in a private capacity. 65 Game Retail stores followed the account and the Respondent followed over 100 stores. The Respondent used this private twitter account to post offensive tweets about content unrelated to his employment, outside of work hours. He was dismissed and successfully claimed unfair dismissal.
The appeal to the Appeal Tribunal was regarding the application of the ‘reasonable responses test’1 from the Jones case2. The Employment Judge in the first instance failed to properly apply the test and ‘permitted his own focus to become the test’.
The Employment Judge should have considered whether or not ‘the employer’s decision and the process in reaching that decision fell within the range of reasonable responses open to reasonable employer’. The Appeal Tribunal expressed that, ‘applying the correct tests, the matter could go more than one way’. As a result the Appeal Tribunal remitted the case back to the Employment Tribunal for re-hearing.
No ‘cheat sheet’.
The Appeal Tribunal declined to set out guiding principles, as requested by the Respondent, outlining that in social media cases, the questions that will arise are fact-sensitive. To provide guiding principles may result in a ‘tick-box mentality that is inappropriate in unfair dismissal cases’.
Game over – play again?
Employees need to be aware of the dangers of misuse of social media and the wide ranging impact. As we have seen in this case, tweets outside of work hours on a private twitter account are not immune from scrutiny. If an appropriate social media policy is implemented, as well as appropriately communicated to the employee, the employer may legally be entitled to fairly dismiss that employee. We await the re-hearing by the Employment Tribunal to assess if the needle has moved in favour of the employer or the employee.