A case involving social media and employment has made its way to the Employment Appeals Tribunal. The case involved an employee dismissed for his use of Twitter, and is interesting to HR for a few reasons.
Firstly, it contains some legal folk getting to grips with the terminology of the social world, which is always amusing. Secondly, it contained this gem of a sentence, referring to the tweets in question.
In her witness statement, she added that they were offensive to other groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people. As you would expect, I disapprove of the latter. But I fairly sure none of the others are protected characteristics so I feel it is acceptable to laugh. Especially at the caravan drivers bit.
The facts of the case are these. The claimant, Mr Laws, worked for the retail outlet Game. His job was risk and loss prevention. He set up a Twitter account and followed a number of Game’s stores, each of whom had their own Twitter account, in order to monitor their tweets and any potential inappropriate Twitter activity by employees. Many of these stores followed him back in return. At least one of the stores had tweeted from their account suggesting that their followers might also want to follow the claimant. (It is unclear from the decision if the concept of #ff was explained in evidence). However, despite the fact that there was a clear link to his work even though the account itself did not identify his employer, Mr Laws tweeted all manner of offensive tweets, including some delightful use of the C word.
Someone told Game, and Mr Laws was suspended, investigated and subsequently dismissed for gross misconduct. Another interesting sentence in the decision is this one, referring to the date of Mr Law’s suspension. By that time he had enlisted the assistance of his 14 year old son, and taken down his twitter feed. What would we do without Generation Z, eh?
The case results in a tribunal hearing to determine if the dismissal was unfair. The claimant doesn’t dispute he sent the tweets, but did argue that the sanction was too harsh. The tribunal held that the employer hadn’t been reasonable in the decision to dismiss. They took into account that the tweeting was done in his own time, that he was using his own device and that the activity wasn’t part of his job. For me, these arguments just don’t stand up in the real, social world. I tweet HR stuff. My twitter bio doesn’t identify my employer. But I know that I am followed by lots of people that work at the same place, and my tweets can be seen by our customers, potential employees, my boss, anyone. And I am capable of bringing my employer into disrepute by what I post. Some might argue my One Direction tweets already do. Social blurs the boundaries between work stuff and not work stuff. My advice is simple. Get two accounts or protect your tweets. Then you can misbehave in private if you wish.
One other important point came up in the first hearing. Game had no social media policy. You do need one. It doesn’t need to be the size of a brick. But you do need to tell people what is okay and what is not.
Game appealed, and the decision that the action taken by Game fell outside the responses of a reasonable employer was overturned. The useful bit of the case is that the tribunal were invited to lay down some general guidance on misuse of social media in the context of unfair dismissal claims. They declined to do so. In a break out of common sense, they said that the existing law was good enough, and that cases would always be very fact and context specific. What employers need to do is what they already required to do – be reasonable in the circumstances. They also said that companies will want to find a balance between the employee’s right of freedom of expression and managing their reputational risk. They finished with this: For us to lay down a criteria by way of guidance runs the risk of encouraging a tick box mentality that is inappropriate in unfair dismissal cases. Awesome.
What seems to me to be clear from this case, is that the claimant was a bit of an idiot. And we should not generate guidance, binding case law or policies, based on or for idiots.
You can think what you like. You can say what you like. You can pretty much tweet what you like, unless you are breaking the law with your 140 characters. But a little common sense would tell you that tweeting whatever comes to mind, especially when it includes expletives, obscenities and insults (not to mention some very dubious spelling and grammar) is going to cause you an issue if that account is linked in any way to your job. Common sense. Something that should be exercised alongside your social media use at all times. And if you don’t know how to do that, you could always ask a 14 year old.