Following a ruling of the Employment Appeal Tribunal (EAT), employers need to sharpen up on their policies and procedures if they are to tackle damaging behaviour from employees on social networking sites.
The case centred on an employee of Game Retail, who was responsible for working with 100 of its retail stores. The employee had a personal Twitter account and many of his followers were fellow employees from stores based around the country. When he posted offensive tweets about towns he travelled to, Game undertook a disciplinary investigation which found him guilty of gross misconduct. He was dismissed immediately and later brought a claim for unfair dismissal.
The first stage tribunal ruled in his favour, saying that the action was not a reasonable response by the employer. On appeal, the EAT said that the first stage ruling failed to take full account of the public nature of Twitter and whether the employee’s private use of Twitter was truly private, given that he was followed by a number of Game’s employees.
Whilst the EAT recognised the right to freedom of expression, this was to be balanced with the employer wanting to reduce reputational risk. The EAT also said that there was no need for Game to demonstrate that the tweets had actually caused offence, only that they had the potential to do so.
The ruling is a reminder that it is essential for employers to have in place a social networking policy which makes clear the standards of behaviour expected of their employees. Without such a policy, employers will find it difficult to take action against employees who damage their reputation.
Sarah Furness, Employment law expert at Hay & Kilner commented: “Despite this ruling, private comments made on social media remain a grey area. Every case must be judged on the facts and the test of whether an employer is making a ‘reasonable response’.”
Sarah added: “Operationally, it’s another aspect of social media usage that needs to be clarified within terms of employment, as employers need to make it clear what online conduct is considered to be unacceptable and whether that includes conduct using personal social media accounts or not.”
For further information, please contact Sarah Furness, Associate Solicitor at Hay & Kilner
Call: 0191 232 8345