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Employment Law Update – March 2015
Social Media, General Elections, Caravan Owners and
Today’s Workplace
The Social Media Election
The 2015 General Election has been dubbed the Social Media Election.
Aged MPs twittering
furiously, counter twittering, then withdrawal twittering, there will be blunders aplenty by the 7th
May 2015 with the risk of the party whip lashing down.
But the Social Media Election is a product of our times, the younger generation, though not
exclusively, is well familiar with opining on every issue, sharing their feelings, their anger, the
frustrations – whether anyone is listening to this e-sharing is an entirely different matter. It is a
vehicle that is here to stay.
A lack of guidance
As the younger generation leave home, school and university, as they enter the grown-up workplace
for the first time, social media, and the misuse of social media is beginning to clutter the inboxes of
the HR departments of every organisation, business and public body.
Here at www.giglegal.co.uk, we’ve been consulted about a broad range of social media issues in the
workplace, whether it be bullying, or a post work’s party rant, or an ill advised ‘humorous’ post on
the organisation’s official social media outlet.
Whether a matter should be dealt with through disciplinary procedures, whether the organisation
has the right, modern policies to legislate for social media use in or outside of the workplace has
largely been a matter of ‘feel’, based on existing, traditional case law dealing with disciplinary
scenarios but without the benefit of specific guidance from the Courts or Employment Tribunals.
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Tel 07710 449 506
Fortunately, in late 2014 and early 2015, there has been a flurry of activity, though these cases fall
short of giving definitive guidance, at least they give professionals in this area some steer as to what
the Courts believe to be important considerations.
Game Retail v Laws [2014] UKEAT/0188/14
The Facts
A relatively senior employee of Game Retail was employed to monitor various branches of this
computer game chain store. Many of the stores had their own, individual social media outlets. The
employee, using his own personal Twitter account, set up, at least in part, for the purpose of
monitoring the outputs from the individual store’s social medial outlets, ‘followed’ many of the
stores under his authority. 64 of the stores followed him in return.
The employee posted some ferociously inappropriate comments, some of which were directed
toward the much maligned group, that of caravan owners, causing some of the store managers at
Game Retail to cajole others into following the employee, due to the amusing nature of his Tweets.
Eventually, this came to the attention of senior management, and disciplinary action was instigated
in relation to 28 of his ‘offensive’ Tweets.
The following was asserted by Game Retail;
"Between July 2012 and July 2013 you posted a significant number of offensive, threatening and
obscene Tweets on your Twitter account, which were in the public domain and therefore able to
be viewed by anyone on Twitter, including Game employees in stores that follow you or that you
follow."
"Whilst this is your personal Twitter account and you do not specifically affiliate yourself to the
company on that account, you also use your account to monitor Twitter activity from the
company's stores that you are responsible for in your capacity as risk officer."
The arguments
The employee was dismissed. The Employment Tribunal found that he was unfairly dismissed and
Game Retail appealed to the EAT, arguing that the Tribunal had erred in substituting its own view for
the reasonable employer’s in the classic ‘band of reasonable responses’ test.
© The Grass is Greener is a trading personality of Richard Shepherd, Barrister.
Tel 07710 449 506
Putting the minutia of the factual arguments to one side, it was argued by the employee that he hadn’t
really referenced Game Retail in his Tweets and therefore there was insufficient nexus between his
personal account and his employer (this followed the High Court authority of Smith v Trafford
Housing (2013) – an authority regarding an employee’s Facebook wall). The employee also cited
Article 10, the Freedom of Expression, in support of his position.
The decision
Ultimately, the case was remitted for a fresh decision on the usual bog standard grounds of perversity
and substitution. The EAT declined to give general guidance as to how parties should approach alleged
misconduct, in a social media context. The closest the EAT came was to highlight the following factors
as potentially relevant:

whether the employer has an IT or social media policy;

the nature and seriousness of the alleged misuse;

actual or potential damage done to the employer’s reputation;

whether the employee has taken part in similarly misconduct previously.
The Way Forward
In Game Retail the EAT, in declining to give general guidance, did remind us of the central importance of
one matter - whether the employer’s decision and process in reaching that decision fell within the band
of reasonable responses.
In short, the ‘feel’ that we’ve been using prior to receiving this helpful guidance, is the ‘feel’ that we
should have been using all along, which is good to know.
If your organisation needs any assistance in dealing with social media policies or alleged misconduct
based on social media, www.giglegal.co.uk is always here to help.
Richard Shepherd
GiG Legal (c)
March 2015
© The Grass is Greener is a trading personality of Richard Shepherd, Barrister.
Tel 07710 449 506