Business Law: Abi Adams on the importance of having a policy on social media use

Abi Adams of Ashton KCJ.

Abi Adams of Ashton KCJ. - Credit: Archant

A personal remark on a personal Twitter feed can be reasonable grounds for disciplinary action by an employer.

That was the finding of the Employment Appeal Tribunal (EAT) after an employer dismissed a member of staff for posting allegedly abusive non work-related messages on his personal Twitter account.

The case centred on an employee of Game Retail who was employed as a risk and loss prevention investigator. The employee had a personal Twitter account and, somewhat ironically as it turned out, he followed 100 Game Retail stores who each had their own Twitter feed in order to monitor inappropriate use by other stores. In return, 65 Game stores followed him.

When he posted potentially offensive tweets, and concern was raised by a fellow employee, Game undertook a disciplinary investigation which found him guilty of gross misconduct. He was dismissed immediately and later brought a claim for unfair dismissal.

The first stage tribunal ruled in his favour, saying that the action was not a reasonable response by the employer, but, on appeal, the EAT said that the first stage ruling failed to take full account of the public nature of Twitter and whether the employee’s private use of Twitter was truly private, given that he was followed by a number of the employer’s stores.

Whilst the EAT recognised the right to freedom of expression, this was to be balanced with the employer wanting to reduce reputational risk. The EAT also said that there was no need for Game to demonstrate that the tweets had actually caused offence, only that they had the potential to do so.

Despite this ruling, private comments made on social media remain a grey area. The EAT did not give any general guidance on when dismissal for social media misuse would be appropriate, saying that every case must be judged on the facts and the test of whether an employer is making a “reasonable response”.

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The ruling is, however, a reminder that it is essential to have a clear policy on the use of social media by employeess, spelling out that private use which impacts on the employer’s reputation can lead to disciplinary action, including dismissal.

: : Abi Adams is a solicitor with Ashton KCJ. The firm is hosting a “Social Media in the Workplace” event at Ipswich Town FC on April 30, at 7.45am. For details, contact Abi Adams on 01473 261332.