In the recent case of Game
Retail Ltd v Laws the Employment Appeal Tribunal (EAT) overturned the Employment
Tribunal’s (ET) finding of unfair dismissal where an employee posted offensive
tweets from his personal Twitter account.
Mr Laws was employed as a Risk and Loss Prevention Investigator
for Game Retail Ltd (Game), and responsible for over 100 of its retail stores. In
order to monitor the activity of these stores, Mr Laws started following their
Twitter accounts from his personal account, which he set up in July 2012.
Shortly after, 65 Game stores started following Mr Laws’ account. Over a year
later, as a consequence of a number of Mr Laws’ tweets being identified as offensive
and abusive, he was found guilty of gross misconduct and summarily dismissed.
The ET concluded that the dismissal was unfair primarily because
Mr Laws’ account had been set up to communicate with people in a personal
capacity. The ET held that as the offensive tweets had been posted outside of
working hours and Game’s disciplinary policy did not explicitly define an
inappropriate private use of social media, it could not constitute gross
The EAT overturned the ET’s decision for the following
The EAT refrained from issuing general guidance for future
social media cases and instead highlighted the standard test of ‘range of
reasonable responses’, pointing out that each case should be assessed on its
- The public nature of Twitter means that access
to posts is not restricted unless privacy settings are enabled. As Mr Laws had
not secured his feed, the 65 stores following him could view his tweets;
- The question of whether the tweets were posted outside
of working hours was irrelevant as they could be accessed by the public at any
- It was irrelevant that Mr Laws did not make
derogatory comments about Game itself; it was enough that he could be
identified as an employee of the company.
Although the EAT ultimately found in favour of the employer,
this case demonstrates that the issues are not quite so clear-cut in the domain
of social media. Employers should therefore think carefully about putting
policies and procedures in place to monitor their employees’ social media
activity to protect their reputation.