Social media can also be a challenging area for employers to manage when employees use it to express beliefs or views that are considered by others to be objectionable. Two recent Industrial Tribunal decisions have highlighted this issue and also demonstrated the significant reputational damage employers can suffer from inappropriate social media use.

The clashing of views on social media and in the workplace, specifically in the area of religious beliefs, political opinions and LGBT+ rights (including debates on the inclusion of trans people and so-called ‘gender critical’ views) is also a growing area, with several prominent tribunal cases in the UK involving employees posting their views on social media.

The claimant, Andrew McDade, was employed by Norman Emerson Group Limited (NEG) as a lorry driver for approximately eight years before his dismissal in June 2022. NEG is a family-owned business, which has operated for over 75 years in mid-Ulster, with employees from both Protestant and Catholic backgrounds.

On 28 May 2022, the claimant livestreamed a video on his Facebook account including a clip of approximately 31 seconds which showed a group of individuals singing a sectarian song that mocked a young woman who had been murdered on her honeymoon. The claimant’s Facebook page confirmed he was employed by NEG.

The clip went viral and provoked strong condemnation, not just in Northern Ireland but across the world. NEG’s social media accounts were said to be ‘flooded with negative commentary’. Some customers stated that they would refuse to unload the claimant’s vehicle if he ever pulled into their yard again and some NEG employees said they would refuse to work with the claimant if he returned. The claimant was dismissed for gross misconduct and subsequently brought a claim of unfair dismissal.

In a related case emerging from the same incident, the claimant’s partner, Ms Shiels, a healthcare assistant, liked and shared the claimant’s video post on social media. She was employed by the Southern Health and Social Care Trust (Trust) for approximately five years and her Facebook page identified her as an employee of the Trust. Staff at the Trust were upset by the video clip and the Trust said her actions had brought the Trust into disrepute. Following an investigation, Ms Shiels was dismissed with the Trust citing violations of their social media and diversity policies. Ms Shiels argued that she had not fully comprehended the content of the video and brought a claim of unfair dismissal against the Trust.

In the NEG case, the claimant defended his actions asserting that his primary focus had been on capturing images of ‘bannerettes’ (small banners representing Orange Lodges in Northern Ireland) as an expression of his culture. However, the tribunal dismissed this argument, emphasizing that the claimant had not accidently turned his attention to the group singing the sectarian song. The Tribunal found that the central focus of the clip remained on the group singing the ‘vile and abhorrent’ song, as well as those in attendance. The claimant also stopped videoing when the song ended.

In both cases, the Industrial Tribunal upheld the dismissals as being fair, recognising the reputational damage suffered by the two employers. In the claimant’s case, the Tribunal held that any reasonable employer, ‘given the conduct of the claimant and given the clear and undisputed damage to both customer relationships and workforce relationships’ would have dismissed the claimant for gross misconduct. Likewise, in the claimant’s partner’s case, the Tribunal similarly upheld the fairness of Ms Shiels’ dismissal, asserting that her actions were ‘act[s] of recklessness’, a clear breach of the Trust’s social media policy and had brought the Trust into ‘serious disrepute’. The Tribunal also acknowledged the serious impact in relation to the claimant’s working relationships with other employees and indeed with members of the public with whom she came into contact in the course of her work.

As mentioned above, we’re also seeing clashing of views situations arising from social media use in the UK, involving topics like ‘gender critical’ beliefs, religious beliefs and LGBT+ rights.

The Maya Forstater case is one of the most prominent UK cases on this subject. Maya Forstater is a writer and researcher on sustainable development and worked for CGD Europe, a not-for-profit think tank, as a visiting fellow and consultant. She had an active social media presence and engaged in debates on social media about gender identity issues. Those who adhere to what they call ‘gender-critical’ beliefs are critical of gender identity theory and do not believe in the concept of gender identity as distinct from biological sex; significantly, they reject the idea that trans women are women, and that trans men are men. Many trans people, as well as trans-inclusive feminists, consider these views transphobic. Following some tweets on her personal Twitter account, some of Ms Forstater’s colleagues complained that these were ‘trans-phobic’, ‘exclusionary or offensive’ and were making them feel ‘uncomfortable’. Following an investigation, Ms Forstater was not offered further consultancy work and her visiting fellowship was not renewed.

Ms Forstater’s views were held to be a protected belief (gaining protection against discrimination) and an Employment Tribunal subsequently found that CGD had discriminated against her, at least in part, because of her protected belief. It was held that she had tweeted about her belief in a way that was not objectively inappropriate or offensive, and CGD’s actions could not be justified as a proportionate restriction on manifesting those views inappropriately. In June 2023, she was awarded GBP 100,000 in compensation.

In another UK tribunal case, Higgs v Farmor’s School, a Christian employee of a secondary school was dismissed following Facebook posts which were perceived as anti-LGBT+. Helpfully for employers, the Employment Appeal Tribunal set out guidance on how to determine whether action taken in these circumstances is proportionate. These factors provide a useful starting point for employers faced with views expressed in a way which is causing offence to other employees, but which nevertheless may themselves be protected under equality legislation.

While we haven’t seen cases like this in the Northern Irish tribunals, it is likely that it is only a matter of time until we do.

There are various ways to manage potential social media risks in the workplace:

• Have a social media policy: It is vital to have a policy that sets out clear guidance on social media use, setting out your expectations and making clear that unacceptable use will result in disciplinary action and potentially, dismissal. While policies should be specific to business needs, you may wish to prohibit employees from identifying themselves as an employee of your business on social media, and/or request that they make it clear that their use of social media is in a personal capacity and that any views expressed are their own.
• Ensure your policies dovetail: It is important to ensure that your social media policy relates to other policies; for example, disciplinary, confidentiality and bullying and harassment policies. You should include bullying or harassment of colleagues via social media as an example of bullying and also as a disciplinary offence. You should also set out that behaviours online which may have detrimental effects on or cause reputational damage to your business could be classified as gross misconduct.
• Training: Ensure your employees know about your policies, are trained on them and are aware of the importance of a diverse and inclusive working culture. This will be particularly important for any employees who actively use social media as part of their role. Up-to-date training also demonstrates that you have taken reasonably practicable steps to prevent employees from acting in a detrimental way.
• Monitor use of social media: If you are concerned, consider monitoring your employees’ use of social media. Tread carefully, however, as there are important data protection obligations relating to this.
• Avoid knee-jerk reactions: Although it can be tempting to take a strident approach, these cases make clear that employers will need to look at each case on its facts. Employers should ensure they follow their internal policies and carefully consider whether any action they propose to take is fair and proportionate, based on the facts of the situation rather than any differences of view between employees or organisational values.

Editor’s note: An overview of the issues at stake in feminist debates on sex and gender may be found at the Stanford Encyclopedia of Philosophy.

*Lewis Silkin