The Perils of Posting: How Social Media Can Impact Employment Relationships

Social media posts often form stories in the mainstream media.

Including recently, a post on X, (formerly Twitter), by loyalist activist Jamie Bryson.

This post was highlighted by Judge Patrick Lynch in the Crown Court, where he raised concerns about the post under the Contempt of Court Act, at the trial of a former British soldier.

This the first in a series of articles, on the perils of social media postings in employment law environment.

Inappropriate posting on social media platforms like Facebook and X may result in reputational damage and possible litigation that all employers would like to avoid. In this series of articles, Associate Director, George Kilpatrick, aims to assist proactive employers to this end. He considers matters that might arise in the workplaces particularly around the use of social media, commentating on events that could emerge as a consequence of political postings from a Northern Ireland perspective or indeed those addressing wider ‘culture wars’.

Posting views that are considered by others to be offensive, may present difficulties for employers not just in ‘orange’ and ‘green’ political issues in Northern Ireland, but also, for example in other emerging ‘culture wars’ such as that around the ‘gender critical’ debate.

A Northern Ireland Industrial Tribunal decision from 2023 highlighted the issue of sectarian postings on social media and the potential pitfalls they present for employees and employers in such circumstances.

The Northern Ireland Industrial Tribunal case McDade v Norman Emerson Group Limited

Andrew McDade (the Claimant), a member of the Orange Order was employed as an HGV Driver for eight years by the Norman Emerson Group Limited (the Respondent) before his dismissal in June 2022. The Claimant was often the “most direct point of contact” between the Respondent and its customers. The Respondent is a family-owned business, which, at the time, had operated for over 75 years in mid-Ulster employing a ‘mixed’ religious background workforce providing services to a ‘long list of customers’, on both sides of the border including the Gaelic Athletic Association.

The Claimant livestreamed a video from his Facebook account on 28th May 2022 which included a clip of approximately 31 seconds long with individuals singing a sectarian song, in an Orange Hall which mocked the murder of a young woman, Michaela McAreavey, on her honeymoon. The Facebook account stated that the Claimant was an employee of the Respondent. The video went ‘viral’ and received wide spread condemnation. Mr McDade deleted the video by deactivating his Facebook account. Nevertheless, there was a 31 second clip still available to the Respondent and ultimately, the Industrial Tribunal.

The Respondent’s social media accounts were “flooded with negative commentary”. Many of which directly criticised the Respondent for continuing to employ the Claimant. Others called for a boycott of the Respondent with some customers stating that they would refuse to unload the Claimant’s vehicle if he ever pulled into their yard again. Some of the Respondent’s employees said they would refuse to work with the Claimant if he returned to work. The Respondent, following a disciplinary procedure, summarily dismissed the Claimant for gross misconduct. At the disciplinary hearing the allegations put to the Claimant included (i) streaming a “vile and abhorrent video which mocked the murder of Michaela McAreavey;” and (ii) causing “widespread offence and outrage and damaging working relationships and business interests” of the Respondent.

The Claimant, according to the Respondent, stated, at the disciplinary hearing that he understood and confirmed the allegations were true. At the Tribunal hearing, the Claimant disputed this but he did not persuade the Tribunal with his argument that the Respondent had misrepresented his position here. The Claimant also argued at the Tribunal hearing that he made the video to focus on the bannerettes, ‘an expression of his culture’. A comment made on the video by the Claimant was, ‘atmosphere fantastic’, but had no reference to the bannerettes or culture. There was no evidence of zooming in or focusing on any bannerettes. The Claimant stopped videoing at the end of the chant/song. The Tribunal did not accept the argument put forward by the Claimant that he could not have foreseen the singing and conduct of others. As explained by the Tribunal, it was not a matter of whether or not the Claimant could have foreseen the conduct of others. “He had “actually seen and had heard this conduct”. The Respondent was entitled to conclude that the Claimant, “could not have failed to hear and could not have failed to understand what was being sung in front of him at that moment.” The Claimant could have intervened. “He could have stopped the livestream” but he did not. Starkly, the Tribunal stated, “Unless the claimant had been both deaf and blind, he had known what he had been recording”.

The Tribunal accepted that the Respondent dismissed the Claimant on conduct grounds i.e. the live streaming of the video his actions causing widespread offence and outrage and that working relationships and business interests of the Respondent had been damaged.

The Tribunal also concluded that the Respondent had followed the statutory disciplinary procedures and had adopted a fair investigation and in the determination process and acted within the range of reasonable responses in dismissing the Claimant As a result, the claimant’s claim for unfair dismissal failed.

The Tribunal regarded Mr McDade’s argument of the post focussing on ‘Orange Cultural issues’, as “implausible”. The Tribunal found that the claim was, “always misconceived and without merit”. The central focus of the clip remained on the group singing the “offensive” song; Mr McDade stopped videoing when the song ended. “Any reasonable employer, given the conduct of the claimant and given the clear and undisputed damage to both customer relationships and workforce relationships. could and in fact would have summarily dismissed the claimant in the circumstances of this case.”

Practical Guidance for Employers:

McDade demonstrates, clearly, the perils of social media misuse and the impact it can have on employment and business relationships. The Respondent in the McDade case emphasised the cross-community nature of its workforce and how it engaged all members of the wider Northern Ireland community. There was a clear link to how the social media content of Mr McDade could affect the Respondent’s business. The Tribunal made it clear that such conduct could clearly be identified and that it could be used as part of disciplinary proceedings against Mr McDade especially in light of his employer being listed on Mr McDade’s Facebook’s page.

In McDade the Tribunal referred to:

“The company handbook, which the claimant had received, stated in plain terms:

You are expected to act wholeheartedly in the interests of the company at all times. Any conduct detrimental to its interests or its relations with any third party, or damaging to its public image, shall be considered to be a breach of the Companies’ rules.
You are required to comply with the Company’s policy of not permitting the display of flags, emblems, posters, graffiti etc. or the circulation of literature which is likely to give offence or cause apprehension among particular groups of employees.”

Gross Misconduct was defined as including:-

“The circulation or transmission, by any means of offensive, indecent or obscene material”
“Criminal or other offences causing harm to the reputation of the Company or relations with the Company’s employees”.
“Causing offense to clients, customers or a third party which has a negative effect on the Company”.

The personal internet and email usage policy stated:

“Employees using email and the internet for personal/private purposes even outside the workplace and/or working hours must be mindful of the impact it can or could have on their work, relationships, the organisation and must not –

publicly identify themselves as working for the organisation.
conduct themselves in a way that is detrimental to the organisation or damages it or their business, relationships, reputation and/or image.
engage in any kind of usage or interaction or make any comments that could constitute – unlawful discrimination or harassment.

At paragraph 106, the Tribunal found that, The Company Handbook made it plain that such behaviour could be classed as gross misconduct. Meaning even for a ‘first offence’, dismissal was a reasonable sanction. This case demonstrates the importance of having good policies in helping to justify disciplinary measures up to and including dismissal.

An expression of culture or misconduct?

In Mr McDade’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.

As well as having good Disciplinary, Equality and Anti-Harassment Policies in place and delivering training on the latter on a regular and intermittent basis, employers should also consider having social media misuse policies in place, which should ensure that employees are aware of their obligations outside of employment, particularly those that may have an adverse impact on their employment. As above, employers in possession of such tools are likely to be in a better position in defending cases of dismissal for misuse of social media.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice.