Social Media and the Workplace; an Evolving Body of Law
Friday 6 February 2015 @ 10.16 a.m. | Industrial Law | Legal Research
The United Kingdoms has seen its first case regarding employment dismissal involving the use of Twitter before the Employment Appeal Tribunal. The case, Game Retail v Laws (UKEAT/0188/14), involved an employee who was dismissed after posting offensive, non-work related tweets outside of work time. The case illustrates the growing trend of legal systems to move towards a better understanding of the nature and use of social media and its impact on the work environment. A myriad of Australian decisions could be seen to closely align with this decision.
Game Retail v Laws
The case concerned Mr. Laws, who was an employee of Game Retail Limited (Game) since 1997 as a risk investigator with responsibility for around 100 stores in the north of England. While Mr. Laws' Twitter account was personal in nature and in no way linked to any of the Game’s Twitter accounts (nor did Mr. Laws identified himself as an employee of Game), his account was nonetheless followed by some 65 Game stores Twitter accounts.
In July 2013, it was brought to the attention of a Game regional manager that Mr. Laws had posted a number of offensive tweets that were racist and discriminatory in nature. Game concluded that Mr. Laws comments amounted to gross misconduct in the public domain and he was summarily dismissed.
On appeal before the Employment Appeals Tribunal, the EAT observed that Mr. Laws offensive tweet could be seen by the 65 stores who followed him and any customers who could pick up on Mr. Laws’ account. In the circumstances, the tribunal had not properly tested the question of whether Mr. Laws' use of Twitter could correctly be described as private usage and had substituted what it considered to be relevant rather than asking what might be the view taken by the reasonable employer.
The EAT concluded that the tribunal’s judgment could not be upheld and that the judge had permitted his own focus to become the test, falling in the 'substitution trap'. The EAT however did not give further guidance on cases involving social media and instead reiterated the UK test of whether the employer’s response had been a reasonable response in the circumstances.
The UK decision reinforces the need for a clearer understanding of social media in the workplace and in the absence of adequate laws to keep up with growing technology it is pertinent for employers to have clear and robust social media policies in place.
The Australian Dimension
The courts in Australia have gradually shown a better understanding of social media and its impact on the work environment. However, the implications of social media for employers and employees are still being fully determined, albeit much progress has been made in the courts.
In a recent decision, an employee was ruled to have been fairly dismissed after he had ranted on Facebook in a crude and threatening way towards a fellow employee. The dismissal was not withstanding the facts that the post was made at home on a personal account and the targeted employee had been blocked from viewing the post. Fair Work Australia found that the post could nevertheless be seen by 11 other co-workers. Fair Work Australia found that the employee’s actions amounted to serious misconduct, and the employee’s unfair dismissal application was dismissed.
In O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311, the Tribunal rejected a disgruntled employee’s unfair dismissal application despite the Facebook comments posted by the employee were out of hours and on his home computer. The employee posted a disparaging comment about the employer which was read by work colleagues. The employer dismissed the employee who argued that his Facebook page made no reference to his employer and only 70 people could access the comment.
Perhaps more notably, in Banerji v Bowles [2013] FCCA 1052, Judge Neville ruled that an employee of the Department of Immigration’s personal Twitter comments criticising Australia’s immigration policy amounted to serious misconduct. The court rejected the argument that the comments were an exercise of the freedom of political communication. It was found that Australia does not have an unfettered right of political communication. The implied right from the Constitution pertained only to the government’s legislative ability and did not amount to a personal right. To this extent, the right does not provide a licence to breach a contract of employment.
Evolving Body of Law
The Australian decisions illustrate a gradual trend away from placing weight upon evidence of an employee’s lack of awareness of social media or right to free speech. The court is displaying greater awareness of the prevalence of social media use and a better understanding of its implications in the workplace. Whilst each case must be considered on its own merits, employees are increasingly less likely to succeed in an unfair dismissal (or other) claim by arguing that their ignorance of social media and its implications ought excuse their actions.
Furthermore, the separation between social media conduct at home and at work is now less pronounced, and this appears to suggest that in future decisions, Fair Work Australia will take a broader approach. The defence from employees that they had carefully blocked any comment from being viewed by co-workers or that they had taken steps to disassociate their account from their employers may no longer hold water in future.
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