Posted on 2nd March 2015

Latimer Hinks Advises Businesses to Tackle "Bad Behaviour" on Social Media

Nick Poole, Latimer Hinks Solicitors

Latimer Hinks is urging businesses to sharpen their social media policies in order to tackle "bad behaviour on private Twitter feeds.

A personal remark on a personal Twitter feed can be reasonable grounds for disciplinary action by an employer, the Darlington-based firm reports. This follows the findings of an Employment Appeal Tribunal (EAT) after an employer dismissed a member of staff for posting allegedly abusive, non work-related messages on his personal Twitter account.

The case centred on an employee of Game Retail, who was employed in a role with responsibility for working with 100 of its retail stores. The employee had a personalTwitteraccount and this was followed by employees from a number of those stores. When he posted potentially offensive tweets about towns he had 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 employment tribunal ruled in his favour, saying that the action was not a reasonable response by the employer, but, on appeal, the EAT said that the first stage ruling failed to take full account of the public nature ofTwitterand whether the employees private use ofTwitterwas truly private, given that he was followed by a number of other employees.

While the EAT recognised the right to freedom of expression, this had to be balanced with the need of the employer to reduce reputational risk. The appeal tribunal 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.

Nick Poole from Latimer Hinks said: "This ruling is a reminder to businesses to make sure that their employment documentation is up to date if they want to react to Tweets by staff.

The EAT did not give any general guidance on when dismissal for social media misuse would be appropriate, saying that every case must be judged on the facts and the test of whether the employers decision to dismiss is a "reasonable response to the offending conduct.

Nick Poole added: "Operationally, its another aspect of social media usage that needs to be clarified within terms of employment, as employers need to make clear not only what online conduct is considered to be unacceptable, whether made on behalf of the company, or personally but also what sanctions may follow for a breach.

For further information contact Latimer Hinks on 01325 341500