You’re Fired! Elon Musk vs Twitter Developer

This week, it was reported that Elon Musk has supposedly fired a Twitter developer in a tweet on Monday 15/11/22 after an employee contradicted him via his recently purchased social media channel.

New Twitter CEO, Elon Musk, tweeted on lagging speeds of the Twitter app some users were experiencing on Android platforms, which prompted his software engineer, Eric Frohnhoefer, to tweet back with his disagreement to the statement. After attracting numerous comments, Musk, was tagged in Frohnhoefer’s tweet, with the final blow coming from Musk with the simple tweet ‘He’s Fired’.

Following on from this, it was claimed that the software engineer had suffered the same fate as many other colleagues recently made redundant from the platform, by having access to his Slack account removed, as well as Frohnhoefer further tweeting an image of his work laptop screen locked and writing ‘Guess it is official now’.

June Salmon, Employment Specialist, Spire Solicitors LLP has looked at both the liability of the employee, as well as the employer, and the legalities under UK employment law for the firing, whether this be employee fault through sharing confidential information, to the employer suffering reputational damage.

If the employee had a view about how the employer was managing the situation, this could have been dealt with in a grievance or raised as a private concern, challenging your employers polices could be deemed to be an act of insubordination leading to disciplinary proceedings. Documenting publicly confidential information or processes could be gross misconduct. One would have to take a view if it was the case.

The employer should have communicated directly with the employee, if necessary, suspending him from the platform and arranging for an investigation and if necessary, a disciplinary meeting to take place. This would have necessitated the employee being suspended if this was deemed to be a matter of gross misconduct. Following an investigation and if determined a disciplinary should take place, the employee should then have been invited to the disciplinary meeting in accordance with the ACAS code of conduct to state his view of what was being said and the reasons for his comments.

An independent disciplinary panel should have been convened to hear the evidence to see if the employee had breached any of the provisions of the employer’s policies. The employee should have been given an opportunity to see the evidence and prepare in advance of the meeting.

If there was a breach of policy or confidentiality there needs to be a determination of the correct sanction, a written warning, final written warning, or dismissal.

If the employee was in the UK and  had less than two-year service, the employee could be dismissed (provided there were no protected characteristics in play), on the contractual notice or in accordance with the statue i.e., 1 weeks’ notice, and would have received the accrued untaken annual leave.

The employee would have a right to appeal against the decision with a properly independently construed appeal panel, who’s decision would be final.

The employer risks reputational damage by effectively carrying out a dismissal without a procedure. If the employee has two years’ service, they become a protected employee and have the right not to be unfairly dismissed. This means the fair procedure and reason for the dismissal are to be in keeping with S.98 of Employment Rights Act. In addition, the employer cannot be judge, jury and executioner without first hearing what the employee has to say.

An unfair dismissal may give rise to a claim in the Employment Tribunal for unfair dismissal. Every tribunal is obliged to consider the ACAS code of conduct when consider a dismissal claim. If the employer fails to adhere to the code, the employee may receive an uplift of up to 25% of the damages awarded to the employee at the Employment Tribunal. Our recommendation is that a summary dismissal is to be avoid and only used in exceptional circumstances specific the situation. If in doubt, it is always prudent to pause, seek legal advice and be safe in the knowledge that the employer has received appropriate advice for the specific circumstances.