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Offensive Tweets and Privacy Settings

Our lives are being increasingly ruled by social media. People provide running commentaries of their everyday lives on social media sites such as Facebook, Twitter, Instagram and the rest. Social media can be both positive and negative.

It is certainly good to keep in touch with friends and family but cyber bullying is an increasing problem, as are inappropriate postings by employees.

Employees can all too often make postings that employers do not like, but what can employers do about them?

Such unacceptable postings could constitute bullying and harassment of other employees or they may be an expression of opinion that could potentially damage the reputation of the employer. Understandably, in such cases, the employer will often want to dismiss on the grounds of gross misconduct.

As with any dismissal, an employer will need to show, after following a fair procedure, that dismissing an employee for postings on social media is fair and within the band of reasonable responses particularly where the postings are made outside of work and on non-work related sites. Alongside the standard defence of: “it wasn’t me, someone must have hacked my account”, employees will frequently rely on the argument that the postings were meant to be private and were not to be read by anyone outside of their group of ‘friends’. Should this make any difference?

The Employment Tribunal considered this recently and decided that an employee had been unfairly dismissed for offensive tweets. The dismissal was found to be outside the band of reasonable responses for two main reasons. First, the tweets were allegedly posted for private use and, according to the Employment Tribunal, it had never been established that a third party had access to them. Secondly, there was no clear policy saying that such conduct would constitute gross misconduct.

The employer, Game Retail, appealed and the Employment Appeal Tribunal (EAT) allowed the appeal. (The case was Game Retail Ltd v Laws, and you can read the whole thing at http://www.bailii.org/uk/cases/UKEAT/2014/0188_14_0311.html if you want). 65 stores had followed the tweets and the fact that the tweets had been reported by a member of staff contradicted the assertion that the posts were private. The EAT sent the case back to the Tribunal to properly scrutinise the assertion that the posts were private.

The EAT was asked to give guidance on this area but refused to do so on the basis that cases will always be fact sensitive. The EAT did acknowledge that there is a balancing act between an employer’s need to reduce reputational damage with an employee’s freedom of expression.

What this case does highlight though is that any defence that postings are private is unlikely to succeed if they have been seen by others and brought to the employer’s attention. When employers take into account an assertion that the posts were intended to be private, then the group of people who did have access should be carefully examined if possible. If the ‘private’ group consists of other employees, clients, customers, then it is hardly a private group and the employer will have a very strong argument that the postings could still cause reputational damage.

What do Employers need to do?

Speak to us, we can help employers create a clear social media policy setting out what is not permitted by staff. If the policy makes it clear the type of postings that are not acceptable and that it would be gross misconduct to make such postings, this should certainly help tip the balance in favour of the employer.

It may also make an employee think twice before posting!

For further information contact us on 01274 306 000.

About the Author

Simon Shepherd

Partner

As Partner and Head of the Employment department Simon undertakes all types of employment work.…

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