Game Retail Ltd v Laws

In a conduct dismissal, the tribunal must apply the range of reasonable responses test to the sanction under section 98(4) of the Employment Rights Act 1996. It must not substitute its own view of the appropriate response for that of a reasonable employer.

In social-media cases, private use remains relevant, but the tribunal must properly assess the work-related context, the account’s accessibility, the employee’s connection with the employer, and the employer’s legitimate concern about offensive material reaching staff or customers. No separate social-media checklist is required. The test in [1982] IRLR 439 remains sufficiently flexible and each case is fact-sensitive.

The employee, a risk and loss prevention investigator, was summarily dismissed for gross misconduct after posting offensive material on a public Twitter account. He followed approximately 100 of the employer’s stores for work purposes, and 65 stores followed his account in return.

The Employment Tribunal held that the dismissal was unfair, while reducing compensation by 40 per cent for contributory conduct. It considered that the Twitter use was private, that there was no evidence that staff or customers had been offended, and that the employee had not identified or criticised the employer.

The employer appealed. The central issue was whether the Tribunal had applied the range of reasonable responses test to the sanction, or had substituted its own assessment for that of a reasonable employer.

1. Appeal allowed and remitted. The Employment Tribunal’s conclusion that dismissal was outside the range of reasonable responses could not safely stand. The Tribunal had made no adverse finding on the employer’s investigation or belief in misconduct. Its decision concerned sanction alone.

2. The Tribunal failed properly to engage with the employer’s case that the Twitter use was not truly private. The employee had used the same unrestricted account to follow more than 100 stores for work purposes, knew that 65 stores followed him, and had not separated work-related and private use or used privacy settings. A reasonable employer could regard the tweets as reaching those stores and potentially customers.

3. The Tribunal’s finding that no staff member had accessed or been offended by the material was inconsistent with its earlier finding that a manager had raised concern about the tweets. It also failed to address that managers of the stores following the account could access material accepted to be offensive. The relevant question was whether the employer could reasonably conclude that the material might cause offence, not whether the Tribunal itself considered actual offence proved.

4. Likewise, the absence of an express criticism of the employer did not answer the employer’s concern. The employee’s connection with the stores, and the possibility that offensive material was reaching employees, customers or potential customers, were matters a reasonable employer could take into account.

5. The EAT declined to give a new checklist for social-media dismissals. The test in [1982] IRLR 439 applied flexibly to the particular facts. Since a correct application of that test could lead to more than one result, the case was remitted to a different Employment Judge, sitting alone, to reconsider sanction on the existing findings and legal submissions only. No further evidence was permitted.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the sanction issue to a fresh Employment Judge.
• Newcastle-upon-Tyne Employment Tribunal: Held that the employee had been unfairly dismissed and reduced the basic and compensatory awards by 40 per cent for contributory conduct.