It has been suggested that twitter has less privacy protection than Facebook and LinkedIn. This is on the basis that with Facebook and LinkedIn you have to allow someone to become a "friend" or "contact". On twitter, if someone follows you they can generally read everything you post, and they can then "re-tweet" this to all of their followers meaning that your "tweets" are not private. This aspect of twitter means that employees should be particularly careful when tweeting.
A recent case demonstrates how the use of twitter can cause problems for employees. In Game Retail Ltd v. Laws 2014, Mr. Laws, a risk and loss prevention investigator for the well known high street store Game, was summarily dismissed after a manager within the organisation raised concern about the content of his tweets.
An investigation identified 28 offensive tweets including expletives and obscene language.
“A&E with me dad useless **** popped his hip out I better not miss the Sunderland match 2 nite.”
"This week I have mainly been driving to towns the **** end of nowhere .. shut roads and ***** in caravans = road rage and loads of fags smoked".
“Another trip to the dentists needed to replace cracked filling ……… 49 pounds ****ing robbin ********.”
Mr Laws was dismissed and brought an unfair dismissal claim in the Employment Tribunal arguing that summary dismissal was not within the band of reasonable responses open to his employers. His unfair dismissal claim was originally upheld by the Employment Tribunal on the basis that:
1. the tweets were posted for private use and it had not been established that any member of the public or employee of Game had access to Mr Law's tweets or associated him with Game;
2. Game's disciplinary policy did not clearly state that inappropriate use of social media in private time could be treated as gross misconduct.
Game appealed this decision to the Employment Appeal Tribunal ("EAT"). The EAT allowed the employer's appeal stating that the Tribunal had not correctly applied the band of reasonable responses test and that the employee's tweets could not genuinely be considered private in the circumstances. The EAT took into account that Mr Law had not restricted his settings to private, was followed by 65 of Game's stores and that his tweets could be seen by staff and customers. The EAT also decided that it was not necessary to show that the tweets had caused offence, only that they might do. It was also not necessary for the tweets to relate to Game. The case has been remitted back to a fresh Tribunal to reconsider the matter.
Another social media work disaster that has recently been reported in the press involved an employee being fired for a ill-judged tweet.
The employee in question tweeted "think I just hit a cyclist. But Im late for work so had to drive off lol".
This was then re-tweeted hundreds of times. Inevitably the individual's employer found out about it and terminated the employee's contract as a result. The employer, a firm of stockbrokers, said that the tweet was "unacceptable" and that the employee had "failed to conduct themselves to the standards we expect of our staff". The employee subsequently tweeted that his earlier tweet had been a joke and that he had not hit a cyclist. However, the damage had clearly already been done.
Those of you with a good memory will recall that this is very similar to the situation from 2013 involving a trainee accountant who also lost her job after tweeting "Definitely knocked a cyclist off his bike earlier. I have right of way - he doesn't even pay road tax."
Emma later described the tweet as "11 out of 10" on the stupidity scale.
Social media use continues to expand rapidly and employers, for their part, should consider implementing (and keeping up to date) a social media usage policy, clearly outlining what employees are allowed and not allowed to do in the context of social media both within and outwith work.
The examples above serve to show that employees can never be too careful with social media and if in any doubt as to whether a post could cause future problems an employee would be wise to err on the side of caution. Employers though must avoid knee jerk reactions and should investigate the matter properly and follow a fair procedure.
Read our recent blog on an employee who was dismissed for a "like" on Facebook here.