Social Media Postings – What can Employers learn from recent case law

In this short series of four articles, we have addressed a number of cases relating to the law on social media postings

We have focused in particular on the Northern Ireland Tribunal decision in McDade, in which the employee was fairly dismissed for offensive social media postings that damaged both workforce and customer relationships. We also considered the more recent English Court of Appeal decision in Higgs v Farmor School, which found that the employee’s originally “lawful” dismissal for her “gender-critical” social media postings was, on appeal, in fact unlawful, amounting to direct discrimination on the ground of her religion or belief.

In this final article, we summarise the key learnings from case law that employers should take into account before taking action against employees who make “unacceptable” posts on platforms such as Facebook, “X” (formerly Twitter), and others.

No Carte Blanche on Expression/Restriction of Beliefs?

In Higgs, the court of appeal held that employers do not have carte blanche to interfere with an employee’s right to express their beliefs just because third parties find those beliefs offensive and might think poorly of the employer for employing the individual. On the other hand, neither does an employee have carte blanche about what they can say in public or how, or in what circumstances, they say it.

The advice to employees is ‘don’t post things that you would not say to your boss, ‘face to face’ in the workplace’. The advice to employers is do not react in a knee jerk fashion to ‘offensive tweets/posts’. Discriminatory social media posts can still be grounds for dismissal if they amount to misconduct and dismissal falls within” the band of reasonable responses.” to such posts.

As the Claimant in McDade found out, acceptable conduct is not restricted to what is posted during working hours. Employees can still be disciplined for behaviour outside work if it touches on the employment relationship in some way which can include postings on Facebook for example.

Reputational Damage Issues Going Forward

The characteristics of the employment relationship may entitle an employer to impose some limitations on an employee’s rights to manifest their beliefs and of free speech in accordance with Articles 9(2) and 10(2) of the European Convention of Human Rights, for example where it has a legitimate interest in protecting a risk of reputational harm, however the interference by the employer must still be proportionate.

The court of appeal in Higgs identified three potentially relevant considerations to the proportionality of such interference:

• The subject matter of the expression of opinion or belief. An expression of views about matters which have nothing to do with the employer’s business will be less likely to damage its reputation than an expression of views on matters which are central to it. In Mrs Higgs’ case there was a connection between the posts and the school because they related to sex education in schools.
• The way in which the beliefs are expressed. Even where the belief itself is protected, an employer may suffer reputational harm from being associated with an employee who expresses it publicly in an inappropriate way. However, the threshold of offensiveness should be high, and protection should not be lost merely because an employee has expressed themselves intemperately.
• Whether it is clear that the views expressed are personal to the employee, or whether they could be imputed to the employer. This consideration may be particularly important in the case of senior employees. This was not an issue in Mrs Higgs’ case, since it was accepted that it was unlikely that readers of the posts would believe that she was speaking for the school.

Employers may, in principle, still be able to rely on reputational damage in cases such as Higgs and McDade. However, in Mrs Higgs’ case, the posts were made from her personal Facebook account, which had no connection to the employer and would likely have been seen by only a limited number of people. The Court of Appeal considered this highly relevant to the extent and gravity of any reputational damage the school might suffer.

However, it noted that there is no guarantee that Facebook posts will be seen only by those to whom the account holder grants access, and publication limited to Mrs Higgs’ Facebook friends could, in principle, still have damaged the school’s reputation within the local community, particularly among those connected to it as parents or otherwise.

The strength of the evidence of reputational damage, and the extent of that damage, will be important factors in seeking to justify an employer’s actions towards its employees.

Falk LJ also stressed the importance of judging an employee’s statement by what is actually said, not by reference to a concern about what some readers might wrongly read into or infer from it.

The test is an objective one: what meaning do the words used actually have and what message would they convey to a reasonable reader? The tribunal had erred Higgs’ by not undertaking this exercise. It had accepted the school’s view, which was understandable as it was focused on the school’s motivation.

However, it was only when a tribunal has determined what the words used actually mean that it can then proceed to determine whether what was said was expressed inappropriately and whether the response was objectively justifiable.

Disciplinary process

The Court of Appeal in Higgs did not consider itself in a position to decide whether the disciplinary process leading to the dismissal was unjustified. It accepted that the school was entitled to investigate the complaint: the posts unquestionably used offensive language, even if they were not Mrs Higgs’ own words, and they had been seen by, and caused concern to, at least one parent who knew that she worked at the school.

It would have been irresponsible not to seek to ascertain whether there was a risk of serious reputational damage, or a risk that Mrs Higgs’ views might have affected how she treated gay or trans children. However, it was open to question whether that investigation needed to be disciplinary in nature, whether it was necessary to suspend Mrs Higgs, and whether the school was justified in finding that there was a case to answer at its conclusion.

To avoid the risk of detriment /discrimination type cases arising as a result of social media posts by employees, employers need to avoid ‘knee jerk’ reactions to social media postings. Suspension and/or the triggering of a disciplinary investigation on such grounds could lead to FETO claims in the Fair Employment Tribunal in Northern Ireland.

The court considered that Mrs Higgs’ case on those elements of her claim would need to be remitted to the tribunal. However, it “would strongly discourage that course”. The real complaint concerned Mrs Higgs’ dismissal and any points of principle were decided in the context of that claim.

Unlawful stereotyping of beliefs

Although it was unnecessary to decide this ground of Mrs Higgs’ appeal, the Court of Appeal accepted, on a non-binding basis, that where an employer relies on unlawful stereotyping of an employee’s beliefs, such as assuming that those holding gender-critical beliefs are transphobic, the treatment will be because of the protected characteristic.

A decision-maker will discriminate where the reason for the treatment is significantly influenced, whether consciously or unconsciously, by a stereotype that persons who hold or manifest a particular belief share attributes of a group which they may not, in fact, possess.

Introduction of an objective justification element into direct discrimination

In Page the Court of Appeal had already held that Mr Page had not been directly discriminated against when he was removed from his post because of the objectionable way in which he had manifested his beliefs i.e. as a magistrate he expressed to a family court panel that he believed it was always best for a child to be with a mother and father, which was deemed to show a pre-determined bias against same-sex parents.

This case introduced a requirement of objective justification into the causation element of direct discrimination under section 13(1) of the Equality Act 2010. The court of appeal took the view in Page that it could not have been parliament’s intention that an employer should be obliged to tolerate any conduct at all from an employee which constituted a manifestation of belief. Where the act complained of was objectively justified, it should not be treated as being done “because of” the manifestation in question.

It is very possible that, in light of the decisions in Page and Higgs an argument that a similar defence ought also to apply to direct discrimination claims under the equivalent FETO provisions in Northern Ireland i.e. under article 3(2) (a) of FETO.

Conclusions

Employers must find a way to manage the rights of employees who hold protected beliefs that may conflict with those of others, while also protecting their own business interests. For example, in Northern Ireland, this may involve balancing the rights of employees with unionist and nationalist perspectives to hold such political beliefs, alongside having procedures in place to prevent harassment of colleagues on the basis of differing views, as well as in relation to other emerging “culture war” issues, such as “trans rights”.

To minimise risk, businesses should have a clear policy on social media use and ensure that all employees understand the boundaries for both work-related and personal use. Where breaches of such policies are suspected, a thorough investigation should be carried out before any decision is made. In light of the comments in Higgs, employers should also consider whether additional restrictions are appropriate for senior members of staff.

Higgs serves as a warning to employers to tread carefully before initiating disciplinary procedures or dismissing employees on the basis of social media posts. The case makes clear that, in Great Britain, there is now a distinction between cases involving the manifestation of beliefs and more straightforward cases of direct discrimination. In the former, the employer must show that its response was objectively proportionate, rather than a “knee-jerk” reaction such as immediate dismissal. Employers must also take care to avoid stereotypical assumptions about the extent or nature of an employee’s beliefs, for example, as in Higgs, equating gender-critical beliefs with transphobia. Subjecting an employee to a detriment based on such an assumption will, in all likelihood, amount to direct discrimination on the grounds of belief, without any proportionality test applying.

The law in Northern Ireland has not yet seen an employment case in which an objective justification test has been applied in manifestation of belief cases. However, there is a strong likelihood that such an approach would be adopted in light of the developments in Great Britain explored in the previous articles.

Get in Touch

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. 

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