Background:

The Complainant had been an employee of the Respondent since 20 February 2015. On 6 January 2023 the Respondent received a message to its Facebook page which said members of its staff have “very extreme views when it comes to refugees coming into Ireland” and included a screenshot which showed the Complainant’s Facebook account commenting “Ireland is on its knees, Irish working people can’t afford heating or food yet refugees think it’s a free for all, stay fight for your country our grand parents fought against the English do the same.” On that day, the Respondent contacted the Complainant by text message and asked that the Complainant remove the comment. The Complainant’s partner, Mr X, saw the text from the Respondent and replied with the Complainant’s phone, telling the Respondent not to text the Complainant’s phone again.

On 9 January, the Respondent convened a meeting between the two business owners along with the Patient Experience Manager and the Business & HR Manager. In this meeting, the Respondent reached a decision to dismiss the Complainant on the grounds of “serious and gross misconduct” having regard to the comment made as in violation of section 2(1) of the Prohibition of Incitement to Hatred Act 1989. The Respondent believed the comment was sufficient to trigger a provision in the Respondent’s disciplinary policy which permitted dismissal without notice if an action is taken “which might impair the operations of the practice or jeopardise patient or employee safety or our reputation.”

The Complainant said she had not been told to stop posting comments at any previous stage and that in the seven years she had worked for the Respondent her performance, conduct and attendance was excellent and beyond reproach.

Outcome:

As the case brought was under the Unfair Dismissals Act 1977 and the fact of a dismissal was not in dispute, the Respondent employer was obliged to prove that its dismissal of the Complainant was not unfair, either substantively or procedurally. The Adjudication Officer found the dismissal was unfair both substantively and procedurally. It was not within the “range of reasonable responses” for an employer to dismiss an employee for the act alleged, as dismissal is the most serious of all possible sanctions available to an employer.  The WRC found the Respondent did not have sufficient regard for the Complainant’s prior record as an employee. In addition, the decision to dismiss the Complainant in a private meeting without prior notice to the Complainant and without the opportunity for the Complainant to respond to the case against her was found to be procedurally unfair. The Complainant was awarded the equivalent of four months’ wages, €8,552.31, in respect of the unfair dismissal and a further €2,012.31 (four weeks) in respect of a failure to provide the minimum notice of her dismissal.

Practical Guidance for Employers:

The level of regard an employer can have for an employee’s social media posts is fact-sensitive and dependent on the nature of the post, the role of the employee, the level of clarity as to what is appropriate, and the extent to which the employee identifies themselves as associated with their employer. In this case and others like it, an in-person warning and the opportunity for an employee to explain themselves for an “offensive” post would have been a better approach to improve their chances that any further disciplinary action, including dismissal, could be found to be fair.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/adj-00043734.html

Legal Island Training Resources for Your Staff

Social Media in the Workplace | eLearning Course

Are you responsible for overseeing the implementation of training for all employees in your organisation? Legal Island’s Social Media in the Workplace eLearning course will help employees understand how the misuse of social media can impact them and their employers, sharing practical examples and useful tips on how to use social media responsibly.

Click here to view our eLearning course on social media in the workplace.