Social Media Abuse in the Workplace – The Northern Ireland Perspective

Social media misuse in the workplace is of growing concern but the normal rules of application of fair procedures still apply. In essence, social media abuse is just another way to commit misconduct and tribunals will expect employees to be treated fairly, notwithstanding they may have contributed to their own dismissal.

We've taken some recent Northern Ireland case law decisions involving social media issues that have been summarised by John Taggart BL for our weekly review of developments' updates to see if any themes, trends or helpful pointers emerge. They make for fascinating reading and highlight a number of directions social media abuse can take when it becomes an issue in the workplace.

Emma McKay v Lil' Butterflies Day Nursery & Amanda McConkey Trading as Lil' Butterflies Day Nursery Case [2016] NIIT 2242/15

Keywords: Unfair Dismissal; Statutory Dismissal Procedures; Fair Procedures

The claimant was employed as a room leader at the second named respondent’s nursery. She was tagged in a particular Facebook post by a friend and colleague which she subsequently ‘liked’ and commented under. This post contained a picture of a mother and daughter with the child asking to go to the park. The caption read, “Sorry love, Mummy can’t take you to the park today, I hate other people’s children”.

When the respondent found out about the activity, she suspended the claimant on full pay claiming that it ‘gave the wrong impression’. The claimant was then invited to a meeting but was given no information as to what it related to, and was then handed a letter stating that after investigation she was being dismissed for gross misconduct. No right of appeal was offered.

After requesting an appeal, a further meeting was held but the claimant was given the opportunity to put forward her point of view. The tribunal found that there had been an automatically unfair dismissal as none of the statutory disciplinary procedures had been followed. The complete failure by the employer to follow the statutory procedures properly resulted in the tribunal holding that it was just and equitable to increase the compensatory award by 50%.

Practical Lessons

The tribunal noted that this was one of the worst examples of a disciplinary procedure they had ever come across. Indeed, it was clear from the date on the dismissal letter that the decision to dismiss had been taken in advance of the disciplinary meeting, which is totally contrary to both the letter and the spirit of the law on unfair dismissal.

The chronology of events was damning for the respondent, with the dismissal letter clearly indicating that the ‘disciplinary meeting’ was already a foregone conclusion. Notwithstanding that crucial error, the respondent also failed to explain to the claimant what the alleged gross misconduct actually related to, nor was it ever put to her.

This case reaffirms that some employers are falling foul of even the most basic of steps in the proper disciplinary procedures. In a case of alleged gross misconduct like the present one, the very least that can be done at the start is to make the employee aware of exactly the alleged conduct/activity, investigate it and allow representations to be made. The employer here completely failed to do any of those and ultimately paid the price.

Whether 'liking' a comment on Facebook would justify dismissal on grounds of conduct, even had the correct statutory procedures been followed, is debatable.

J20 v Facebook Ireland Ltd [2016] NIQB 98

Keywords: Harassment (Northern Ireland) Order 1997; Social Media; Misuse of Private Information; Vicarious Liability

The plaintiff in this High Court case brought claims alleging harassment and misuse of private information in relation to a series of postings about him on three web pages that the defendant hosted.  They included photographs of the plaintiff with numerous captions all related to flag protests in Belfast in 2013.

In applying the legal test for harassment the court focused on whether or not, objectively judged, the postings were ‘oppressive and unacceptable’ and held that the posts were insufficient to meet the definition. In analysing the relevant case law, the court noted that pursuant to the Harassment (Northern Ireland) Order 1997 a claimant would have to demonstrate that the conduct was of such gravity as to justify the sanction of criminal law and was not merely distasteful or unreasonable.

The defendant was, however, held liable for the tort of misuse of private information with £3,000 damages awarded against Facebook.

Practical Lessons

Claims of harassment by employees are now an increasing concern for employers, given the popularity of social media. Cases such as Teggart v TeleTech UK Ltd NIIT/704/11 demonstrate how certain conduct between employees even outside work can amount to harassment and employers need to be aware how to deal with it within a disciplinary context.

However, this case is particularly relevant for its discussion of when employers may be held vicariously liable for harassment between employees. A claimant would initially have to demonstrate that there was a ‘close connection’ between the employer and the alleged conduct but, if that hurdle was satisfied, an employer could potentially incur liability.

There is no question that the bar is set high for a claimant to be successful and even the most distasteful comments or unpleasant, bad tempered behaviour of an employee would not incur liability for the employer since these might never amount to criminal offences. Nevertheless, a workplace policy on bullying and harassment is certainly a good idea and the LRA have published a ‘Model Policy’ which should prove instructive.

https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2016/%5b2016%5d%20NIQB%2098/j_j_COL10121Final.htm 

Jason Steele v Asda Stores Ltd [2017] NIIT (CASE REFS: 2252/15, 2253/15, 2375/15)

Keywords: Unfair Dismissal; Investigation; Framing Allegations; Social Media Abuse

The claimant made claims for unfair dismissal and unlawful disability discrimination. The background facts are that a female colleague made allegations that a number of male colleagues sexually assaulted her and that the claimant had sent her abusive text and Facebook messages. The claimant was suspended from work and an investigatory meeting was arranged.

Errors were made in the wording of the allegations against the claimant which referred to sexual harassment and that the alleged conduct occurred over a period of 6 months; neither of which were entirely accurate. A disciplinary hearing was then adjourned to allow more evidence to be gathered and when it was eventually reconvened the claimant was not in attendance.

The manager dealing with the hearing then decided to summarily dismiss the claimant for gross misconduct in his absence. A new manager then inherited the disciplinary proceedings and saw fit to make his own findings but again erroneously made reference to the sexual harassment allegations which, it had already been accepted, were not connected to the claimant. The tribunal noted that the new manager ignored the claimant’s representations that he was actually away from the workplace on alleged dates. Nonetheless, on the facts, summary dismissal was held to be within the limits of the range of reasonable responses.

Practical Lessons

The recurring, yet completely avoidable, complication for the employer here was that it kept getting the allegations against the claimant mixed up with allegations against other colleagues. This was obvious from the original suspension letter which contained incorrect allegations and incorrect dates.

This issue was eventually ironed out but the appointment of a new manager to take over the process saw a return to the confusion. The serious consequence of this was that the tribunal held that the claimant understandably formed an impression that the allegations against him had been linked to those of his colleagues against whom more serious allegations had been made and that his case had been “prejudged”.  The handover of such information between managers in these situations is clearly absolutely key and ensuring that there is a continuity of treatment of the employee is part of that. Otherwise, as here, this can give rise to potential unfairness in the disciplinary process.

Sarah McCrossan v Department for Social Development [2016] NIIT 00062_15FET

Keywords: Discrimination; Political Opinion; Social Media; Discipline; Detriment

The claimant was employed in what was then the Department of Social Development (now the Department for Communities). In May 2015 an anonymous complaint was made to her employer about Facebook posts she had made during an election mentioning the DUP and the Minister who headed the Department. The complaint alleged that the posts went against the principle that staff should maintain “neutral working relationships” and indeed the respondent had a policy stating employees were not to comment on controversial issues connected with the Department.

The claimant was disciplined and received a one-year formal written warning. The tribunal held that the claimant was subjected to detriment but the real issue was whether the decisions of the employer were taken based on the “political opinion” of the claimant. The tribunal made clear that it had to focus on the ‘cause’ of the treatment the claimant received as opposed to the ‘motive’. This led the tribunal to the conclusion that the disciplinary process was driven forward because of the divergence between the claimant's expressed political views and those held by the complainant and the Minister at the time. The claimant was, therefore, able to prove that the detriment suffered was on grounds of political opinion and the tribunal held she had suffered unlawful discrimination.

Practical Lessons

The tribunal was anxious about curtailing the ability of employees to express political opinions online and noted the potential “chilling effect” of doing do. The rationale behind the employer’s policy i.e. maintaining neutrality in the workplace is not relevant to the test of causation no matter how benign the motive. But what of the employee’s right to free speech?

Interestingly in Teggart v TeleTech UK Ltd NIIT/704/11 the tribunal noted that an employee posting public Facebook comments abandons his right to have them treated as ‘private’. The tribunal here appeared to echo such a stance by noting that the claimant had 738 friends, all with unrestricted access to the comments and thus they were not ‘private’ and outside of the respondent’s policies.

Whilst the current case involved comments related to political opinion, employers should ordinarily consider the circumstances surrounding the particular incident(s). This may include whether there has been reputational damage caused, evidence of harassment or bullying of a colleague and/or whether the views are purely personal or purport to represent the employer.

Ultimately, the employer will be required to demonstrate a ‘fair and reasonable’ approach in the absence of hard and fast rules about acceptable behaviour on social media.

Further comments from John Taggart BL on these cases and social media abuse in the workplace:

Social media allows people to share information, ideas and views and can affect various communications between managers, employees and even job applicants. Perhaps most worryingly, it can also distort the boundaries between private and work life.

Whilst employers may have their own social media policies they must bear in mind that disciplinary action against employees must still be in accordance with established disciplinary policies and procedures. Within the area of social media and employment law there are a few key considerations that the tribunals have had their say on. Firstly, damage to the reputation of the business is something that can span many different scenarios but the tribunals have noted that employers must concern themselves with actual impact on the business rather than the feared or assumed impact.

For example, in one case where an employee posted on Facebook alluding to the childish behaviour of colleagues it was found that no actual damage had been caused to existing commercial relationships which the company feared would be jeopardised by the comments (Witham v Club 24, ET1810462/2010). Again, the barometer of whether the dismissal was ‘reasonable in the circumstances’ is key and employers must be careful to consider the actual basis for dismissal and analyse what impact the social media abuse is alleged to have.

In addition, the actual details of how a posting is made is less important with tribunals focusing more on the actual connection with work and the impact on the employer. Lastly, the potential for social media to be a medium for harassment and bullying is a real one. The best pre-emptive action an employer can take is creation of social media and bullying policies outlining what is considered unacceptable behaviour and clearly explaining its contents to employees. However, any subsequent actions against employees must reflect the seriousness of the allegations with the reasonableness of actions again being of fundamental importance.

The case law of the tribunals is littered with examples of employers rushing to act which very often creates unfairness. Considering whether any postings are public, who may have seen them and what effect they have had as part of an investigation increases the chances of employers being justified in handing out sanctions for social media abuse.