Rachel Richardson from the Employment Team in Tughans writes:

Twitter is one of the biggest social media applications to impact on the workplace and more and more often, employers are facing issues arising from employee misuse. This then calls into question the grey lines which separate an employee’s private and work life. Surprisingly, there are relatively few cases about twitter which have made it to the employment tribunals, in comparison with cases surrounding other types of social media misuse, such as Facebook.

I think that you need to establish the facts.  Firstly, did the tweets identify the manager by name? If they didn’t identify him by name, then if you can access the followers on the account, is there an expectation that they would know the identity of the manager, even in the absence of his name appearing in the tweets? Secondly, does your employee use his private twitter account for work purposes?  These are some of the questions you should ask as part of a thorough investigation.  Depending on what is uncovered during the investigation, it may be that you need to subsequently initiate a disciplinary procedure and the charges may include bullying and harassment and bringing the company into disrepute, if it could reasonably be assumed that your company can be identified from the tweets themselves.

What will be key however, is that you have a good social media policy in place and of course, that the employee in question is aware of it and has received proper training on the use of social media in the workplace.

In essence, as a basic starting point, all social media policies should:

• set out actions which will be strictly prohibited under the policy and state that a breach of the policy may result in disciplinary action being taken, up to and including dismissal;
• remind employees of their confidentiality obligations and also those around intellectual property;
• cross refer to other policies, such as bullying and harassment;
• provide clear guidelines, setting out how employees should promote your business, if they are using social media for this purpose.

If you do decide to proceed with disciplinary action, you should proceed in the same manner as with any other type of disciplinary charge, as if you dismiss and the matter ends up in an employment tribunal, the tribunal will be focussing on whether the decision to dismiss was outside the band of reasonable responses, available to a reasonable employer.

Finally, in the case of Game Retail v Laws (a case concerning twitter), the Employment Appeal tribunal indicated that the question was not whether or not the tweets in question had actually offended someone, but rather, whether or not the employer was entitled to reach the conclusion that the tweets might have caused offence and whether other employees and customers might have read them. When carrying out your investigation, this is something to consider.