Catering Scotland

With employees making daily use of social media in their own private time, the challenge for employers looking to protect against online misuse has never been greater. Alan Delaney explores some of the latest developments…

The Employment Appeal Tribunal (EAT) recently had to consider the misuse of Twitter by an employee for the first time. Game Retail Ltd, the operator of the well-known games stores, had earlier dismissed one of its risk and loss prevention investigators, following tweets sent from his personal account, allegedly aimed at a wide range of groups, including Newcastle supporters, dentists, A&E workers and ‘t**** in caravans’.

Game considered these tweets to be offensive, threatening and obscene, and dismissed him for gross misconduct.

Why would a personal Twitter feed affect an employer?

While the employee opened his Twitter account for his own private use and used it in his own time, he started to use it for very limited work purposes. He followed 100 Game retail stores, which each had their own Twitter feed, to monitor inappropriate use by other stores and 65 stores followed him in return. Having brought an unfair dismissal claim challenging the sacking, the Employment Tribunal backed the former member of staff, concluding that he had not registered on Twitter as part of his job, his tweets all concerned matters unrelated to work and were made in his own time. Furthermore, beyond a concern raised by a colleague, it had not been established that any member of the public or staff had access to his tweets and had been offended.

In other words, this was a theoretical risk. The judge noted that none of his tweets referred to him working for Game or about his work in any way.

Finally, his employer had no policy in place at the time of his dismissal stating that misuse of social media in private time might be treated as gross misconduct. For these reasons, the tribunal found that his dismissal was unfair.

Does personal mean private?

The Employment Tribunal’s decision was appealed by Game. Backing the retailer, the EAT held that the judge had essentially failed to have proper regard to the public nature of Twitter. The most important feature of this case was arguably the fact that the manager used his own personal Twitter account to follow other work retail stores and allow them to follow him. His own actions compromised any argument that his tweets were entirely private and did not impact his employer. That position was also undermined by his failure to apply any privacy settings to his tweets, making these publicly available, beyond his followers.

What does this mean to employers?

A growing number of social media employment-related cases reinforce the importance of implementing clear policies. These should spell out that private social media use in an employee’s own time – which impacts the employer or its reputation – can lead to disciplinary action, including dismissal.

This latest case highlights the importance of taking care over both who you follow on Twitter and over who follows you, lest your own private posts become a work-related issue.

Alan Delaney is an associate in the Employment team at Maclay Murray & Spens LLP and a member of the firm’s Food and Drink team.