Too many tweets … - Goldenleaver
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.. made for a fair dismissal in the case of Game Retail Ltd v Laws – although it was the content and context of Mr Laws’ tweets that were the problem, not their number.

This was one of them:

This week I have mainly been driving to towns the arse end of nowhere… shut roads and twats in caravans = road rage and loads of fags smoked’.

“Not so bad”, you might say.  “I’ve heard worse on daytime TV”, you might also say.

And an Employment Tribunal seems to have taken a similar view, when it decided that Mr Laws’ more offensive and expletive laden tweets (28 of them) were misconduct, but not gross misconduct, so Game Retail’s decision to summarily dismiss Mr Laws fell outside the band of reasonable responses.

The Tribunal’s reasoning was:

  • The tweets were posted for private use and it had never been established that any member of the public or employee of Game Retail had access to Mr Laws’ tweets or associated him with Game Retail.
  • Game Retail’s disciplinary policy did not state that inappropriate use of social media could result in dismissal without notice.

It seems, however, that the Employment Tribunal had failed to understand how Twitter works.  The point was that, although Mr Laws’ Twitter account was a personal account, he had no privacy settings, so his tweets were visible by default, he could be seen by staff and potential customers, and 65 Game Retail stores were following Mr Laws (although whether an employer should be following a member of staff is another issue…).

As a result the Tribunal were criticised for asking the wrong question.  Instead of asking whether the tweets had offended anyone, the correct question was whether Game Retail had been entitled to reach the conclusion that the tweets might have caused offence.

The answer to that question (based on the above example of one of Mr Laws’ tweets) was “yes”.   The factual points were (i) the Tribunal had found that the tweets were offensive, (ii) a manager had reported them, and (iii) 65 stores had access to them.  Therefore, it was inconsistent for the Tribunal to conclude that the reputational risk to the business was only theoretical.

Consequently Mr Laws’ dismissal was fair – which will be welcome news for those employers who invest considerable time and money in reputational management and CSR, and who will prefer not to have those efforts undermined by careless tweeting.

So is Facebook the same?  Interestingly, Mr Laws’ case was decided differently to a previous High Court ‘Facebook’ case (Smith v Trafford Housing Trust) in which an employer had not been entitled to characterise the posting of views about gay marriage on an employee’s Facebook wall as misconduct.   This may be because Twitter has a more public nature than Facebook, making dismissals relating to offensive tweets easier to defend for employers than a similar Facebook status.

This case is a reminder that businesses should review their social media policies and ensure that Twitter is included and that their staff understand what is acceptable and what will be misconduct.

A word of warning – if any business believes that Twitter isn’t relevant, consider this: in Q1 of 2007, 400,000 tweets were posted, whereas in 2012 over 100 million users were posting some 340 million tweets per day.  If you are an employer or an employee don’t get caught out…

Caroline Leaver