“There is no evidence that any customer or member of staff did view the material and was offended by it.” 25. That was wrong. A member of staff had plainly viewed the tweets in question and had drawn the nature of those tweets to the attention of the regional manager; to suggest otherwise was simply wrong. Further, if this was to be read as finding there was no evidence of actual offence taken, that ran counter to the express finding that it was not materially in dispute that there was material posted on the Claimant’s Twitter account that was offensive if viewed. 26. Turning, third, to the content reason, the Judge had concluded it was relevant that the Claimant had not posted anything derogatory of the Respondent or anything that would reveal that he was an employee of the Respondent. Again, that conclusion did not withstand scrutiny. First, the Respondent’s staff had identified the Claimant: the local manager who had raised the concern in the first place had obviously identified the Claimant within the Respondent’s organisation. Second, managers or deputy Game store managers would have known who the Claimant was, or that would have become apparent to them over time. Third, members of the public might consider that they were encouraged to follow the Claimant because the Respondent’s stores were following him and thus, by inference, endorsing him. Indeed, the Preston manager had actively encouraged others to follow the Claimant. There was thus an association of the Claimant with the Respondent that was likely to have been explicit for other employees but could be implied or inferred in the case of customers. 27. Lastly, turning to the restriction reason, here the Respondent relied on the passage in the Employment Judge’s reasoning at paragraph 5.7: “The claimant had restricted his use of the Twitter account with regard to the respondent who monitor [sic] stores only as part of his duties.” 28. First, the sentence did not actually make sense. Second, to the extent that sense could be made of that sentence, it seemed to fail to appreciate that the Claimant had not used the restriction setting on his Twitter account. 29. The Respondent submitted that the proper outcome of this case was that the appeal should be allowed and that, given the perverse nature of the conclusion reached, there was only one permissible outcome. Taking on board the injunction against this EAT substituting its view for that of an ET (see per Laws LJ in Jafri v Lincoln College[2014] IRLR 544 CA), this case came within the potential exception (see paragraph 21(b) of that Judgment) where the EAT could conclude that the result would have been different to that reached and could itself substitute the correct outcome (see also the Judgment of Maurice Kay LJ in Burrell v Micheldever Tyre Services Ltd[2014] IRLR 630 CA). The Claimant’s Case 30. On behalf of the Claimant it was submitted that, on the question of substitution, there was no evidence that the Employment Judge had substituted his view for that of the reasonable employer. As warned by Mummery LJ in Fuller , this Court must be careful not to fall into the very same error that it was suggested had been committed by the Employment Judge. It was necessary to be clear as to the distinction between a real point of law and a challenge to a primary finding of fact dressed up as the law; this appeal was really a case of the latter. One could see a proper application of the relevant legal principles to the ET’s reasoning (paragraphs 5.3 to 5.6); that reasoning was crystallised at paragraph 5.7 but must be read in its entirety. 31. Descending into the detail of the Respondent’s argument and addressing first the mechanics of Twitter use, one of the issues before the ET had been the level of access to the Claimant’s Twitter account. For his tweets to appear on a store page they would have to be re-tweeted; it would require some active engagement on the part of a store. Moreover, any store could have a very large number of followers, hundreds if not more. For his part, the Claimant was monitoring the Twitter activity of stores in his remit to see whether there was any untoward activity on the part of staff, such as offering video games for sale. There was no reason for him to be other than an entirely invisible follower of the stores’ Twitter feeds; indeed, to be identified would run counter to the purpose for which he was using Twitter. As for the staff, there was no evidence that anyone had particularly linked the Claimant with his role at the Respondent. The evidence was that no stores had followed him until after the Preston manager had tweeted encouragement that they should do so. Thereafter some 64 other stores did. Otherwise, one would have had to trawl through the huge list of followers for a particular store, pick up on the Claimant’s name as a follower and then decide to follow him. The fact that the Claimant’s own line manager had not realised that the Claimant had been the author of the offensive tweets was evidence indicative of the failure of the Respondent’s employees to draw any link between the tweets and the Claimant. 32. What was relevant to the Employment Judge was that the Claimant’s Twitter feed did not have a sufficiently work-related context (to use the language used in the High Court case of Smith v Trafford Housing[2013] IRLR 86 ). In Smith , where a housing manager had been demoted following the posting of religious views on his Facebook page, it was held that his Facebook wall had not acquired a sufficiently work-related context to attract the prohibition against the promotion of political or religious beliefs; and that was so notwithstanding the fact that Mr Smith had identified himself on his Facebook wall as a manager of the Respondent trust, and it was not purely private in the sense that it was not simply available to his invitees because he had a “friends of friends” extension. 33. Ultimately, Twitter was nothing more than another form of social media not unlike Facebook. To the extent it was relevant to have regard to the suggested guideline principles contained within the Respondent’s submissions, the Claimant urged that application of those principles would lead to a conclusion in the Claimant’s favour. In terms of the presence and content of any IT or social-media policy: here, the Employment Judge had found that the Respondent did not have a clear statement of policy in place at the relevant time. As for the nature of the misuse, the Employment Judge had clearly taken this into account. Whether or not the social-media use in question had been clearly labelled as representing the employees’ own views seemed irrelevant given the approach adopted by the court in the Smith case. It was right that IT and social-media policies should not stifle comment, and indeed regard would need to be given to fundamental human rights under the European Convention on Human Rights and Fundamental Freedoms (ECHR) before restricting, for example, the right to freedom of expression. That in truth was what the Respondent was seeking to do here. 34. As to whether there had been any previous warning, again the Employment Judge had taken that into account so far as it was relevant. As for any complaints by the members of the public or staff, the Employment Judge had been entitled to find that there was no evidence of complaints from members of the public and at most the Respondent was seeking to draw an inference that members of staff had complained from the fact that it was apparently a local manager who had raised the issue of the content of certain of the Claimant’s tweets. In relation to the suggested factor of actual or potential damage to customer relationships as a result of relevant posts, there was no evidence of that here. As to how quickly the material had been removed by the employee, in this case the finding was that the Claimant had quickly taken steps to remove the Twitter account. 35. Should the EAT be minded to allow the appeal, the correct order was that the case should be remitted for fresh consideration. Respondent in Reply 36. The Respondent noted that there had been no real attempt to defend paragraph 5.7 as a crystallisation of the Employment Judge’s reasoning. On the question of identification, the submissions failed to address the question as to how the Preston manager had managed to identify the Claimant (which was not apparent from the Employment Judge’s reasoning) and did not properly engage with the point that another manager had managed to identify the Claimant sufficiently to raise the nature of his tweets with the regional manager. The Claimant’s submissions seemed to rely on his naivety, but on the Employment Judge’s findings as to the investigation he had there accepted that he knew that other stores and people more generally could follow his tweets. 37. On the Smith case it was to be noted that the court had expressly stated that each case will be “intensely fact-sensitive” in terms of whether or not the use of media in question had become work-related. In any event this case could be distinguished from that of Smith : first, this was a case where the Claimant was following upwards of 100 of the Respondent’s stores for a work-related reason; second, Mr Smith’s Facebook page had partial privacy settings, the Claimant’s Twitter feed had none; third, in the Claimant’s case, one of the Respondent’s store managers had drawn attention to his Twitter feed and to the nature of the tweets in question. Discussion and Conclusions 38. As set out at the outset of this Judgment, this case relates to the misuse of Twitter by an employee. Twitter is an online social-networking service enabling users to send and read short 140-character messages, or tweets. Registered users can read and post tweets; unregistered users can read them but not post themselves. Unless senders choose to restrict tweets to their followers, those tweets are publicly visible by default. We are told that the growth of Twitter since its establishment in March 2006 has been phenomenal: in 2007, 400,000 tweets were posted by quarter; by 2012, there were over 100 million users posting some 340 million tweets per day. It is not merely a social tool but has been embraced by professionals and, as here, businesses, which use it as a means of communication and marketing. Moreover, as ACAS has identified, in providing its advice and guidance on the use of social media: “There can be confusion over what is acceptable behaviour in the use of social media. Some employees can see it as a platform for free speech and believe they should be able to say what they want. This can prompt an angry employer to over-react.” 39. It is in this context that the Respondent urges that we should take this opportunity to lay down guidance of a more general nature as to cases involving an alleged misuse of Twitter in the context of a claim of unfair dismissal. We return to this point below but make the preliminary observation that the context of this case cannot detract from the fact that the appeal before us is put on the grounds of substitution and perversity, and the difficulty for the Respondent in seeking to overturn a decision of an ET on those grounds remains, whatever the factual background. 40. The relevant task for the Employment Judge here required the application of the range of reasonable responses test: the range that was open to the reasonable employer in the circumstances of this case ( Iceland Frozen Foods Ltd v Jones[1982] IRLR 439 ). The Employment Judge plainly had that test in mind; the question for us is whether he then correctly applied it to the facts he had found in this case. 41. We turn then to the Employment Judge’s reasons for concluding that the dismissal in this case was unfair. That conclusion was not based on any finding adverse to the Respondent in terms of its investigation or as to the reasonableness of its belief. The Employment Judge was solely concerned with the reasonableness of the sanction imposed given both reasonable investigation and belief. It is convenient in carrying out our task to adopt similar headings to those used by the Respondent in its submissions, although in so doing we do not restrict our assessment to any particular paragraph of the Employment Judge’s reasoning but take the Judgment as a whole. 42. We first consider headings (1) and (4), private usage and restriction, taking them together because the points made overlapped to a large extent. 43. The Employment Judge plainly considered it relevant that the Claimant had: “… not registered on Twitter as part of his work but principally in order to communicate with acquaintances outside work and concerning matters that had nothing to do with work [paragraph 5.3] … [and the] offensive material was communicated for private use only and not in work time [paragraph 5.7].” 44. He also stated (paragraph 5.3) that: “… the claimant made no reference in any Tweet to the respondent or his work in any way. … the store manager or his deputy would have direct access to the store Twitter feed. … by his actions in following many of the stores, for which he was responsible but for a work purpose the claimant did create a risk [that] a member of the public or staff might have access to his Twitter account and the offensive Tweets, but the dismissers do not appear specifically to have weighed the risk, which may have been very small indeed. …” 45. The difficulty that we have with these conclusions is that they fail to engage with the employer’s reasoning in his case. Although we accept Mr Collins’ point that no one would have received the Claimant’s tweets other than by making a conscious decision to follow him, it would be wrong to suggest, as certain aspects of the Employment Judge’s reasoning seem to do, that followers were thereby restricted to social acquaintances. The Claimant had not made use of the restriction setting on his Twitter account. He had also not sought, as he could have done, to create two separate accounts (one with which to follow the stores and the other for purely private use). On the Employment Judge’s findings of fact, the evidence before the Respondent was that some 65 of its stores were following the Claimant. Rather than the offensive tweets solely going out to be read by the Claimant’s social acquaintances, they were, as the Claimant must have known, going out to all of those 65 stores as well. Moreover, to the extent that any customers had picked up on the Claimant’s account - perhaps as a result of the tweet from the Preston store manager - they too would be recipients of the tweets in question. 46. We do not say that private usage is an irrelevant question. We recognise that there is a balance to be drawn between an employer’s desire to remove or reduce reputational risk from social media communications by its employees and the employee’s right of freedom of expression; see Smith . In the Smith case it was considered relevant that Mr Smith’s Facebook wall had not acquired a sufficiently work-related context to attract the prohibition against the promotion of political or religious beliefs in the housing trust’s code of conduct. That prohibition, it was recognised, had to be considered in the light of the obvious potential to interfere with an employee’s right of freedom of expression and belief. Allowing that the present case would involve the right of freedom of expression, rather than that of religious or other belief worthy of protection, the point would still be relevant. Generally speaking, employees must have the right to express themselves, providing it does not infringe on their employment and/or is outside the work context. That said, we recognise that those questions might themselves depend on the particular employment or work in question. 47. Our difficulty in this case is that we do not consider that the Employment Judge properly tested the question whether this was a case that, in truth, should be described as private usage. This was a case where the Claimant had followed upward of 100 of the Respondent’s stores for a work purpose and permitted that some 65 of those followed his Twitter feed in return. He had made no attempt to use the restriction settings or taken steps to address the Preston manager’s encouragement for other stores to follow him; indeed, the evidence before the Respondent suggested that he had re-tweeted that encouragement. Further, to the extent that the Employment Judge had referred to the fact that the store managers or their deputies would have access to the store Twitter feed and thus to the Claimant’s tweets, he apparently then failed to engage with what this would mean. On one view, the Employment Judge allowed his own focus to mean that he failed to engage with a point of concern for the Respondent here; that the offensive messages were going out to those of its stores that were following the Claimant via their Twitter feeds. If so, he substituted what he considered to be relevant rather than asking what might be the view taken by the reasonable employer. Alternatively, he reached a view that was perverse, in the sense that no reasonable ET could have failed to have regard to the fact that the Claimant had not attempted to ensure that his tweets only went out to a private audience and was knowingly tweeting in the context of having some 65 of the Respondent’s stores following his feed. 48. We turn then to the second heading, the offence. Here, the Employment Judge apparently concluded (paragraph 5.5) that: “… there is no evidence that any member of staff in fact had access to that material let alone raised a complaint about it or was offended.”