In Game Retail Ltd v Laws [UKEAT0188/14] the Claimant was a Loss Prevention Investigator working for Game. As with many businesses, particularly in the retail sector, Game’s stores depend heavily on Twitter and other social media platforms for marketing and communications. Each store has a Twitter profile which management controls and a large number of customers follow their local stores meaning that the customer ‘tweets’ could appear within the store’s Twitter feed. Laws had a personal Twitter account and he followed all of the stores for which he was responsible. The managers of 65 stores out of the 100 for which he was responsible were also following him. Around a year after Laws had created his account, one of the store managers notified a regional manager about a tweet that Laws had posted and stated that they were offensive. On review, Game found some 28 tweets which they considered offensive.

Following a disciplinary process, Laws was dismissed which the Employment Appeals Tribunal considered to be unfair but on appeal the decision was overturned in favour of Game Retail Ltd. None of the comments in this case were derogatory to the company but the issue was whether they were, of their nature, offensive and might be going to Game’s employees, contrary to its harassment policy or, to customers and potential customers who had been alerted to follow Laws because other stores were following him. There are clear reputational issues in this situation to be borne by you as the employer.

In a more straightforward case, Apple Retail (UK) Ltd dismissed a Mr Crisp following his complaints on Facebook about his work and, more importantly, their products. The Tribunal were clear that the dismissal was not unfair because of the potential reputational harm but raised and ever increasing consideration – would The European Convention on Human Rights further his case? Article 8 is the right to respect for private and family life and that was the concern in this particular case – Did Crisp have a reasonable expectation of privacy over his Facebook posts? Whilst Facebook is private in the sense that you can limit who your friends are, there is no way that you can control what your friends then do with your comments either on Facebook or elsewhere. The Tribunal felt that as a result of this, there could be no reasonable expectation that those comments would remain private.

Article 8 is frequently raised as a defence in social media cases with a reputational aspect and Pay v Lancashire Probation Service is a leading case on the issue. Pay, who specialised in the treatment of sex offenders, posted photographs online of himself, engaged in sadomasochistic activities and when dismissed, sought to rely on Article 8. EAT upheld that as Pay had put them in the public domain, they fell outside of the protection of Article 8.

In the above case, Pay also sought to rely on Article 10, freedom of expression. The EAT again upheld that whilst Pay’s rights under Article 10 were engaged, there was no unjustified interference with the right as it was important to balance the competing interests of the employers’ concern to protect their reputation and maintain public confidence with the employee’s rights to freedom of expression. In this case the EAT felt that the dismissal was proportionate because Pay had indicated during his disciplinary that he would not curtail his activities and there was no viable option of an alternative role.

These cases should never be interpreted to mean that as employers you’re home and dry. Employees will always have the right to a private life and the right to freedom of expression. There is, however, a balance to be struck. Do tread carefully, but rest assured interference with these rights will always be supported where an employer is seeking to protect legitimate interests.