Gradually there are more cases being decided on social media. In a recent case concerning dismissal of an employee for offensive tweets sent in his own time. Unfortunately.the EAT refused to lay down general guidance despite being asked to do so.
However, the following points do emerge
1. Although tweets were sent from the employee's personal Twitter account in his own time he had not set his settings to private and he knew he was followed by 65 stores so that should count against him.
2. As to whether the tweets are offensive there is no need for evidence that any particular person was offended as long as the employer had reached that conclusion. as it had been reported by a manager and could they could be seen by 65 stores.
3. The relevant issue was not whether the derogatory comment related to the employer but whether the tweets were offensive and whether other staff or customers might have read them.
4. Cases will turn on their facts and long established principles. This includes especially general unfair dismissal purposes such as whether at the time of dismissal as much of an investigation had been carried out which was reasonable and that the employer makes a decision which is within the band of reasonable circumstances.
For example, whether the employer has an IT or social-media policy; the nature and seriousness of the alleged misuse; any previous warnings for similar misconduct in the past; actual or potential damage done to customer relationships and so on. In truth, however, those points are either so obvious or so general as to be largely unhelpful. The test to be applied by ETs is that laid down in Jones; that is, whether the employer’s decision and the process in reaching that decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case. That test is sufficiently flexible to permit of its application in contexts that cannot have been envisaged when it was laid down.