Dismissal for abusive tweets fair
In the next case, the EAT overturned a tribunal’s decision that a dismissal for posting abusive tweets on a personal Twitter account was unfair.
The Claimant worked as a risk and loss prevention investigator investigating losses, fraud and theft at his employer’s shops. He opened a personal Twitter account. He followed the shops for which he was responsible and was followed by a majority of those shops.
After a shop manager reported the Claimant for posting offensive and abusive tweets, an investigation took place and the Claimant was dismissed for gross misconduct.
The Claimant brought a claim for unfair dismissal and the ET upheld his claim because the tweets had been posted for private use and it had not been established that any employee or customer had seen the Claimant’s tweets or associated him with the company. In addition, the company’s disciplinary policy did not clearly state that inappropriate use of social media in an employee’s own time would be treated as gross misconduct.
The employer appealed to the EAT which overturned the tribunal’s decision. In particular:
• The judge was not entitled to conclude that the Twitter account was private. The EAT noted that the Claimant had not activated restriction settings on the account and that his tweets were publicly visible.
• The judge’s conclusion that there was no evidence that actual offence had been caused by the Claimant’s tweets to the public or staff was perverse. One shop manager had felt sufficiently strongly about the tweets to report them to management. In any event, the EAT stated that the question was whether the employer was entitled to conclude that offensive material visible to staff and the public might cause offence.
• The judge was not justified in his finding that the employer could not be identified from the tweets. The EAT considered that it was possible to link the Claimant and the employer from the Claimant’s following/follower profile.
Social media usage in the workplace is not the novelty it once was. Its widespread use has led to an appreciation of the risks to businesses arising out of its misuse by their employees, such as bullying and harassment, misuse of confidential information and the making of disparaging comments about the business and colleagues.For advice about how you can protect your business and its reputation from the risks of social media misuse, please contact me.The information and any commentary on the law contained in this bulletin is provided free of charge for information purposes only. It does not, and is not intended to, amount to legal advice. You are strongly advised to obtain specific, personal advice about your circumstances and not to rely on the information or comments in this bulletin.