Tweeting offensive comments

2015-01-26 Jennifer Renney posted:

Last month the Employment Appeals Tribunal considered the misuse of Twitter by an employee for the first time. The Tribunal’s decision gives businesses and workers a lot to think about, especially as the use of social media is on the increase amongst workers and in businesses.

The claim concerned a manager at Game. The manager had a twitter account for private use, but started to use it for limited work purposes. As a result, he was following over 100 Game stores, with over 65 stores following him in return.

The manager tweeted a number of tweets which were allegedly aimed at a wide range of groups including Newcastle supporters, dentists, hospitals, caravans etc. A colleague at Game found some of the tweets offensive, threatening and obscene, and reported the matter to the company. Game found the manager guilty of gross misconduct and dismissed him. The manager issued a claim for unfair dismissal claim in the Employment Tribunal.

The Employment Tribunal agreed that the dismissal was unfair as they took the view that the manager’s tweets concerned matters unrelated to work that were made in his own time. Furthermore, Game failed to prove that the tweets had brought the company into disrepute, as the only evidence they had was the concerns brought by a fellow colleague, and there was no evidence that a member of the public had been caused offence, and therefore the company had not established it had suffered a loss of reputation.

Because none of the tweets related to the manager’s employment with Game, and the company had no policies or procedures regarding the use of social media in place, the Judge found that Game had no basis to dismiss the manager.

Game successfully appealed to the EAT (Employment Appeals Tribunal) against the decision. In upholding its appeal, the EAT found that no attempt had been made by the manager to restrict access to his tweets by means of privacy settings, and that the Employment Tribunal should have taken into account the fact that the tweets were publicly visible and therefore could bring the company into disrepute. The manager’s intention to use twitter for private purposes had to be balanced with the reality that he was following 100 Game stores and 65 were following him in return, making his tweets openly available to them. He had not chosen to use two Twitter accounts, one for work purposes and one for private purposes.

The case has been sent back to the Employment Tribunal for a final decision, so watch this space.

This case highlights the essential need for businesses to have a clear policy on the use of social media. With employees making daily use of social media in their own private time, the challenge for employers looking to protect against online misuse that could harm them has arguably never been greater. Such policies would enable workers to know their limits, and allow businesses to protect their reputation and public image.

If you require any assistance with drafting a social media policy, or require legal advice surrounding the use of social media in the workplace, contact us today for a no obligation chat on 01225 632240 or at info@renneyandco.com.

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