Can a tweet, made by an employee on his private Twitter account outside working hours and not relating to or even mentioning the employer or its business, amount to gross misconduct?
A recent UK case involved a manager of a multi-store retail company that made much use of social media for marketing. Each store had its own Twitter account. The manager had set up his own private Twitter account so he could follow all the stores he was responsible for and, in return, many of them followed him. The manager in time posted a number of very offensive non-work related tweets which were picked up by colleagues at the stores, one of whom complained to the company. The tweets did not refer to the company or anyone in it and did not constitute a breach of law but were capable of being offensive to a number of groups.
The manager was dismissed for gross misconduct and brought a claim for unfair dismissal. At first hearing the Tribunal held that the dismissal was unfair as it was not a reasonable response by the employer. However, it also found the manager had contributed to his own dismissal and reduced the compensation award by 40%.
The company appealed the decision. The Appeal Tribunal agreed with the company and referred the case back to the first Tribunal for a new hearing primarily because the first Tribunal judge had misapplied the principle of “reasonable response”.
Leaving aside the more technical legal arguments for the referral back, there were useful underlying practical points to note: (1) an employee’s right to freedom of expression can be balanced against the employer’s right to protect the reputation of its business and staff; (2) it may be no defence if the social media account is private and used only outside working hours if the privacy settings still permit distribution to followers who are colleagues or stakeholders in the business; (3) even if the offensive comments do not relate to the employer, its business or staff it is possible that they might breach employer policies such as those to do with intimidation or harassment.
The question is always what, in the circumstances, is a reasonable response by the employer to the employee’s behaviour.
Much discussion on this point has also arisen recently following the posting on YouTube of a video by a trainee lawyer with a well-known international law firm regarding the Islamic world’s response to the Charlie Hebdo murders. On the video the trainee apparently expressed from an Islamic perspective some strong but perfectly legal views on the Western practice of freedom of speech. He called for a less apologetic response from Muslims in general to the murders, while not condoning them. He apparently used the word “Kuffar” on several occasions to refer to non-Muslims (a word some regard as offensive). The video was quickly taken down. The firm’s only public response so far has been to state that the views expressed were “personal and not those of [the firm]”.
However, many businesses are now hurrying to tighten up their internal rules on the use of social media by employees.