This week I have mainly been driving to towns the arse end of nowhere … shut roads and twats in caravans = road rage and loads of fags smoked.
Anyone familiar with the terrifying terrain of the Twittersphere probably wouldn’t blink at this tweet. But they might find it astonishing that an employee could be dismissed for tweeting it in their own time, on their own personal Twitter feed, relating to matters wholly outside of the business of their employer.
However, the recent judgment in the case of Game Retail Ltd v Laws has left the door firmly open for employers to deem personal tweets such as this gross misconduct should they offend “potential customers”.
Threatening and obscene
The Employment Appeal Tribunal was considering an appeal brought by Game, the nationwide games retailer, concerning its decision to dismiss one of its employees for an alleged misuse of Twitter. Game had fired its loss and prevention officer, Mr Laws, for gross misconduct following the discovery of “a significant number of offensive, threatening and obscene tweets” on his Twitter account.
Laws, who did not affiliate himself with his employer on his account, also followed a number of stores for which he had responsibility in his job. Many followed him back. Given that his tweets were not set to private, his account was deemed to be in the public domain, since it could be viewed by anyone on Twitter – including Game employees in stores that followed him.
The specific tweets for which he was fired did not make for pretty reading, despite being laced with black humour. They included:
Another trip to the dentists needed to replace cracked filling hope he’s wearing a mask and stripy jumper 49 pounds fucking robbin bastards.
Game argued that the tweets were offensive to groups of people
Including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people.
But they were not remarkably extreme, and certainly no worse than many of the typically rude, aggressive and offensive statements made “publicly” by people up and down the country – whether in pubs, at football matches, or online.
Fair and unfair
The judge initially decided that dismissal on the basis of such non-work related tweets was unfair. The tribunal, however, found that the judge had made an error of law in substituting his own impression of what was a fair decision, rather than deciding whether Game’s decision to dismiss fell within the correct “range of reasonable responses” test. The appeal was therefore successful, and the case went to a fresh tribunal.
Clearly any case involving the misuse of social media is intensely fact-sensitive, and so caution must be exercised in critiquing the judgment; all the more so in this case when the final resolution is still pending. And the tribunal was rightly reticent to give any general guidance on how tribunals should decide such cases.
It did nonetheless recognise that “there is a balance to be drawn between an employer’s desire to remove or reduce reputational risk from social media communications by its employees and the employee’s right of freedom of expression.”
Even with that caveat, though, this judgment is serious cause for concern.
Arguably most worrisome is the determination that the case was not restricted to whether the tweeted material was “derogatory of the [employer] but whether it was, of its nature, offensive and might be going to … potential customers who had been alerted to follow the Claimant”.
This could allow employers to draft draconian social media policies forbidding any potentially offensive non work-related tweets on pain of dismissal. Where it would once have been unthinkable to sack an employee for a sweary outburst about football supporters in the pub, such a sentiment rendered in an ill-thought-through tweet could now constitute a dismissible offence.
Bizarre and offensive
Of the approximately 500m tweets tweeted every day, many tens of thousands are shocking, bizarre and offensive. For many millennials, an online persona is impossible to disentangle from the self. Twitter is a space that blurs the public and private, the personal and professional, and the cathartic and the pathetic.
All that means that the gratuitous over-sharing that would have been anathema to the baby boomer generation is now de rigueur for many (even most) young professionals. Their public expressions of private sentiment confound many of the more rigid legal definitions that once underpinned conduct management; it is now routine behaviour for an employee to personally follow their employer’s Twitter feed, collapsing the separation between their private and professional life.
As such, protections of the right to free speech are coming under terrible strain, given that speech’s volume, vulgarity and visibility. To determine whether a dismissal for offensive tweeting falls within the “range of reasonable responses” in the 21st century, we need to take a far more nuanced and critical view of this rapidly morphing and volatile virtual landscape.
For now though, when it comes to angry tweeting, discretion is certainly the better part of valour. However much you hate caravans.