Two recent UK Employment Appeal Tribunal (EAT) decisions have highlighted just how important it is for:
- employers to have properly drafted electronic communications and social media policies in place; and
- for employees to read those policies carefully and properly understand them.
Failure to have sufficient policies in place to deal with behaviour relating to use of electronic communications that falls below acceptable standards can lead to employers having difficulties in taking reasonable disciplinary action. Equally, an employee who makes a poor judgement behind the keyboard and fails to read or understand what is expected of them can result in the termination of their employment, due to momentary failure to “think before they type”.
Game Retail Ltd v Laws
The Claimant in this case was dismissed after it was found that he had tweeted extremely offensive posts on his private Twitter account. The Employment Tribunal (ET) found that his dismissal had been unfair as the Respondent’s decision to dismiss did not fall within the ‘band of reasonable responses’ of a hypothetical reasonable employer. The ET considered that:
- The Claimant’s account was private;
- It was used for communicating with acquaintances outside work;
- He used his own mobile phone to Tweet;
- His use of Twitter was in his own time; and
- He provided explanations for some of the offensive Tweets.
The EAT allowed the Respondent’s appeal as it considered that the ET Judge had substituted his view for that of the reasonable employer. The EAT held that the ET had not properly considered whether the employee’s use of Twitter was truly private, given that he was ‘following’ 100 of the Respondent’s stores and was ‘followed’ by 65 stores. The EAT considered Twitter more public than Facebook, making dismissals relating to offensive tweets easier to defend that Facebook posts.
The issue in this matter was not whether the Tweets were derogatory towards the Respondent business, but whether the Respondent’s employees were receiving the Tweets, contrary to the Respondent’s harassment policy, or whether Tweets would be received customers /potential customers as a result of the employee’s ‘Twitter relationship’ with other stores, potentially in breach of an electronic communications policy.
Atkinson v Community Gateway Association UKEAT
In this recent case the Claimant claimed constructive unfair dismissal, based on a complaint that his electronic conduct had been investigated in such a way that amounted to a repudiatory breach of his contract of employment.
Whilst investigating the Claimant’s conduct the Respondent had accessed his emails and discovered that he had sent sexual messages to his ‘lover’. The Claimant contended that his right to respect for private and family live under Article 8 of the European Convention on Human Rights (ECHR) had been breached by the Respondent’s investigation.
The EAT found that Article 8 had not been breached by the Respondent. It had reviewed the workplace email account during its disciplinary investigation and had done so in accordance with its Internet and Email Acceptable Use Policy. The Claimant was even responsible for the enforcement of this policy. As a result of the terms of the policy, both the ET and the EAT held that the Claimant had no expectation of privacy in relation to his emails whilst at work.
Both of these cases demonstrate that disciplinary action surrounding the misuse of electronic communications is not clear cut. Tribunal decisions are very much dependent on the facts of each case and the actions of the employer throughout investigations, including their reliance on clearly worded policies. In both of the above cases, had there been no policies in place, the employer may well have struggled to defend its position.
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