In what is thought to be the first such case involving Twitter, the Employment Appeal Tribunal has overturned an Employment Judge’s decision that an employee was unfairly dismissed after posting offensive tweets.
The claimant, Mr Laws, worked for Game Retail as a risk and loss prevention investigator for about 100 stores in the north of England.
As with many businesses, Game used Twitter and other social media for marketing purposes. Each of Game’s stores had its own Twitter account which was administered by the store manager.
Mr Laws opened his own Twitter account to monitor the stores for which he was responsible to see if anything happened with their communications that was unacceptable. Of the 100 stores which Mr Laws followed, 65 followed him in return.
Over time, Mr Laws started to use Twitter as a way to vent his frustrations at various non-work related issues including golfers, caravanners, A&E and dentists. The tweets included offensive language.
One of the store managers who followed Mr Laws brought these tweets to Game’s attention. Following an investigation and then a disciplinary hearing, Mr Laws was dismissed for gross misconduct on the basis that he had posted “offensive, threatening and obscene tweets” which were available in the public domain.
The Employment Tribunal decided that the decision to dismiss Mr Laws did not fall within the so-called “band of reasonable responses”.
Reasons given included because he had not registered on Twitter as part of his job but principally to communicate with friends outside of work and there was no evidence that any customer or member of staff was offended by the tweets
The EAT, however, allowed Game’s and decided that, in respect of various aspects of his reasoning, the Employment Judge had either impermissibly substituted his own view for that of the dismissing employer, or had reached a decision which was perverse on the evidence.