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John Mehrzad on successful Twitter EAT Decision

The EAT has finally decided a
workplace social media misconduct case, specifically concerning Twitter. Whilst
it refused to set out ‘tick-box’ guidance, Game provides the proper approach to
such cases and touches on factors that may be assessed when evaluating the
reasonableness of disciplinary sanctions.

Facts

The facts in Game were not in dispute; Mr Laws was
employed as a Risk and Loss Prevention Officer responsible for roughly 100 Game
stores in England. Mr Laws opened his own Twitter account by means of which he
‘followed’ about 100 Game stores to monitor their tweets. On 18 July 2013 a
store manager informed a Game regional manager that Mr Laws had posted
offensive tweets. Upon investigation, 28 tweets were identified as being
offensive. Mr Laws did not dispute that the tweets were offensive but contended
they were directed at friends and were made outside work hours. Game had a
bullying and harassment policy in place at the relevant time but a specific
I.T. policy covering non-work social media postings had yet to be implemented.
Nevertheless, Mr Laws was aware that Game stores followed his tweets. Following
a disciplinary hearing, Mr Laws was summarily dismissed, a finding which was
upheld on appeal.

The appeal

On appeal, the EAT (HHJ Eady QC
sitting as Judge) unanimously allowed the appeal brought by Game on all basis. In
summary, Game’s two grounds of appeal – substitution and perversity – were both
upheld.

In terms of the substance of the
EAT judgement, it found:

• first, that
  the Tribunal’s finding that the offensive tweets were communicated for private
  use only and not in work time could not be supported by findings in fact or,
  indeed, the mechanics of how Twitter operated in practice;
• secondly,
  there plainly was evidence that a member of staff had been offended by the
  tweets and had, as a result, brought their nature to the attention of a Game regional
  manager;
• thirdly,
  even if there had been nothing derogatory of Game specifically Mr Laws’ mixed
  personal and private Twitter account, recognisable as being from a Game
  employee since he was ‘followed’ by 65 stores and had been identified by a store
  manager as being a person to be ‘followed’, meant that his tweets could be
  arguably associated with Game and, thereby, bring its reputation into
  disrepute; and
• fourthly,
  there was no finding at all that access to Mr Laws’ Twitter account had been
  restricted in any way so the reading of his offensive tweets were not limited
  to his non-work friends.

In reaching
its decision the EAT confirmed that the general principles for a misconduct
dismissal as set out in Iceland remained the appropriate approach. The EAT also mentioned that some of the
factors suggested by the employer may be relevant; the seriousness of the
allegation, prior similar misconduct, complaints, actual or potential damage to
the employer’s reputation and how quickly the posts were removed.

Read the judgment here.

Practical lessons

Game gives a
timely warning to members of the ever-increasing Twitterati that tweets sent
outside work hours, even directed primarily at non-colleagues, may still result
in disciplinary action and even dismissal. We have already seen high-profile
disciplinary sanctions in the world of sport and even criminal convictions as a
result of tweets. Game now makes the
prospect of dismissal within the workplace all the more real for the rest of
us.