Have you ever swiped on your social media to read a post that makes you squirm or cringe? What if it is connected to someone in your workplace? What if the post then goes viral?

You're not alone. In today's digital era, HR professionals and business leaders are often confronted with such challenging scenarios. Social media's impact is undeniable, both personally and professionally.

• But what happens when an employee's misguided post about their workplace or colleagues become a crisis?
• What if an employee, who has the statement ‘The opinions and thoughts expressed here are my own and do not represent the views or positions of my employer’, still posts inappropriate content – can you take action?
• What crosses over from freedom of expression into potential disciplinary misconduct?
• Is an employer permitted to refer to external pressure in the disciplinary process?

Explore the complex landscape of social media's influence on employer-employee dynamics with our engaging webinar, 'Social Media in the Workplace'.

Gain insights from leading case studies on the challenges employers face in managing online conduct both in and out of the workplace. Learn about the pivotal role of social media policies in mitigating legal and reputational risks, the nuances of handling disciplinary processes, and the importance of balancing employer rights with employee freedom of expression.

In this webinar, Victoria Smith, Knowledge Partner, is joined by employment law expert, Peter McInnes, from McInnes Dunne Murphy LLP who:

-Looks back at case law to learn from and protect your business
-Outlines the key lessons and recommended actions for employers
-Discusses how employers can implement robust policies and training for all staff on Social Media (both in and out of the workplace)

Cases mentioned during this webinar:

- Carey v Wix (2024)

- Irene Glynn v Carlow Dental Centre (2023) -ADJ-00043734

- A School Secretary v A National School (2017) - ADJ-00004802

- O’Mahoney -v- PJF Insurances Limited (2010) – UD 933/2010

- Kiernan -v- A Wear (2007/2008) – UD 643/2007

- The British Waterways Board v Smith (UK EATS/0004/15)

- Weeks v Everything Everywhere Ltd (UK EAT 2012) (“Dante’s Inferno” case)

- Crisp v Apple Retail (UK) Ltd 1500258/2011

- Preece v Wetherspoons (UK ET 2104806/10)

- Whitham v Club 24 t/a Ventura (ET 1810462/10)

- A Security Officer v A Security Company - https://www.workplacerelations.ie/en/cases/2020/october/adj-00028296.html

- Ms Seyi Omooba v Michael Garret Associates Ltd, t/a Global Artists and Leicester Theatre Trust Ltd 2021

You can download the slides HERE: Social Media in the Workplace Slides 29.02.24.pdf

Recording:

Transcript:

Victoria:  Good morning, everyone, and welcome to our webinar, "Tweeting on Thin Ice: Protecting Your Company in the Social Media Age", sponsored by MCS Group.

My name is Victoria Smith and I'm part of the Knowledge Team here at Legal-Island. If this is your first time joining us, you're very welcome. We run a number of these webinars throughout the year that cover many topical issues within Irish employment law.

I'm joined today by Peter McInnes, a partner of McInnes Dunne Murphy LLP. Thanks so much for joining us. I will hand you over to Peter shortly who will take you through today's webinar.

To put some further context to our session today, according to website DataReportal, in Ireland as of 2023, there were 3.5 million social media users aged 18 and above, roughly 92% of the adult population. This report highlighted there are nearly 5 million internet users in Ireland, making up 99% of the entire population.

LinkedIn emerges as one of the most popular social platforms with 2.7 million members, reaching 53% of the Irish population. To no surprise, Facebook also maintains a strong presence with 49% of the population having accounts. Instagram and TikTok are also prominent, with 45% having Instagram accounts compared to 43% with TikTok accounts. And whilst it is the lowest, Twitter still retains a decent amount of 33% user base in Ireland.

This goes to show that no matter where you go in Ireland, a Wi-Fi signal will be required, and the majority of us will probably be scrolling on Facebook or Instagram when we can.

Whilst I think a lot of us can see that social media has many positives, there can of course be many dangers in a bad post that goes wrong. In this webinar, we'll be navigating through these perils of social media where many a bold employee has dared to tweet only to find themselves in thin ice and a frosty situation with their employer.

To help you with this, Legal-Island has developed a comprehensive course to empower your staff with an understanding of the repercussions associated with the misuse of social media, both on a personal level and as an employee with their employer.

This course is equipped to teach your staff and give them knowledge on the impact of social media, the legal considerations and associated risk, and responsible usage guidelines.

We will now just run a quick poll. Please don't worry, this is anonymous, so we won't be shouting out anyone's name. But it would just be interesting to see some results in how our attendees are handling social media in their workplace.

So the first poll. Does your organisation currently have an up-to-date social media policy? So I'll give everyone just a second to answer. Okay. At the moment, 61% do and 39% don't. So we'll be covering that off whether it is a necessary policy to have.

The next poll, then. Do you currently provide all staff with social media awareness training? Again, just select yes or no. So the majority don't currently provide training, with 80% saying that they currently don't. Again, we'll cover that off, whether it is a necessary training aspect.

And then the next poll won't be shown, but it's just out of our interest. If you are interested in finding out more information on our eLearning training courses, please just tick yes or no. If you are interested, a member of our eLearning Team can be in touch with you to provide you with further information.

 So thank you so much for those polls. As always, we do just want to give a shoutout to our sponsors for all of our webinars, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, please head over to www.MCSGroup.jobs.

So thank you all so much. Please remember we do have a chat box where you can put in any of your questions. We will try our best to go through as many questions as we can at the very end in our Q&A session. Again, it's all anonymous, so please don't worry about asking anything.

 I'll now pass you over to Peter. So Peter is partner at McInnes Dunne Murphy, a specialist employment law firm based in Dublin. Peter is an experienced litigator who advises corporate clients and senior executives on a diverse range of employment issues, including disputes, unfair and wrongful dismissal, discrimination, and industrial relations.

So it's great to have you here, Peter. I will pass it over to you to let you take it away.

Peter:   Thanks very much, Victoria. Good morning, everybody. It's my pleasure to be here this morning and to talk to you about this very topical and, I suspect, ever-growing issue about social media in the workplace.

As Victoria has said in her introduction, some of the statistics are fairly mind boggling about the usage and prevalence of social media. So it's inevitable that it's going to have an impact on work.

It's had a very positive impact in many respects. I'm sure we can all agree a few years ago, I would never have dreamed of sitting here, and I happen to be working at home today, doing something like this. But now, it's absolutely routine to meet using the internet and the communication channels that are now available.

And I'm sure many of you are significant social media users. Speaking personally, I'm not, and I'm a little bit of a dinosaur when it comes to the actual usage of social media. I'm fairly limited in that scope, but I've been educated by my younger colleagues and by members of my family quite significantly in preparation for this discussion today.

Social media is everywhere. Most people use it. It's relevant to work and, as Victoria said, it can cause problems. And what I'm going to do is . . . Can you change the slide, Maria, please? Next slide please. Thank you. What I'm going to do is try and highlight some case law which gives some pointers towards what employers should do, what employees can do, and the consequences and the steps that employers can take to try and mitigate the potential risks they face if they find themselves in a situation where they discover a social media post or a communication that they do not like, and whether they can take action against the employee for doing so.

One of the questions that struck me when I was researching and preparing for this talk today was, "Is it really that different from the days before social media? Is there really a different dimension to an employment issue deriving from a social media post to one maybe deriving from an internal email or something slightly more old fashioned?"

I think the answer in some ways is not really, but there are a couple of particular dimensions which are new and are relevant to the issue of social media probably alone.

I'm going to give you some tips in relation to sort of steps to avoid, key takeaways in relation to the contents of policies, but I thought I'd start in relation to kind of the general principle.

The general principle is actually quite a straightforward one, I think. The general principle is if an employee posts something on social media that relates to their employer and is disparaging of their employer, critical of their employer, displays a negative attitude towards their employer, and if that comes to the employer's attention, then that employee is potentially liable to action by the employer, up to and including the termination of their employment, just as if they'd said something to somebody's face in work.

So, in one sense, it's not different, but there are a couple of different considerations to be taken into account.

Some of the case law . . . and this slide shows some recent Irish cases, and I'm going to deal with some UK cases as well, because in a lot of respects, Irish law is mirrored on UK law, certainly in the employment arena, and we would look to the UK Employment Appeals Tribunal and the High Court in the UK on occasion for guidance where we don't have any case law of our own.

So the basic principle is if you put something online, it's critical of your employer, and the employer finds out about it, there's a potential issue for the employee. And these cases that I've cited here amply demonstrate that.

Now, the first one . . . and if I start getting into the weeds of case law, we'll be here for hours, and I'm sure nobody wants that. So I'm going to skim over them quite swiftly so we can move on. But I do want to just touch on some of the key points in some of these cases.

The first one is actually not a decided case, Carey v Wix, but it's a case that is coming. And it attracted quite a lot of media publicity late last year when Ms Carey, who works for Wix, which is a web design platform company and significantly in the context of this discussion, and in relation to the dispute, is an Israeli company. Ms Carey had worked for them for several years.

She posted comments on her own social media feeds in relation to the war in Gaza. She was highly critical in those posts of the Israeli state and the attitude it has taken.

And I'm not here to express political opinions, but that is an issue which is hugely topical and about which people have very strong, passionately held opinions, which most would say have absolutely nothing to do with their work status. And in lots of respects, that's completely true.

But in Ms Carey's case, she's employed by an Israeli company, and her comment about the Israeli response to the initial attack in Gaza was very severely critical. It came to the company's attention, and the company dismissed her.

Now, this attracted mainstream media. It was reported in "The Irish Times" and other broadsheets in late October when all this happened.

She has filed a complaint for unfair dismissal in the WRC, so the media reports say. That case hasn't come on for a hearing. Given the time scale of the WRC these days, and the claim was filed in late October, it's going to be pretty soon that there will be a hearing about it, assuming that the matter hasn't been resolved or disposed of some other way.

It'll be very interesting to see how the WRC deals with this, because here we have an example of someone stating personally held opinions, which on their face have nothing to do with her employer. She's not being overtly critical of the company Wix, but she is being critical of the Israeli state and Wix is an Israeli company. And they responded to that by dismissing her.

That's going to be very interesting, because it's one of these cases where it's a post that on its face is unrelated to work, and we'll come back to that.

Some of the other cases that are listed, in fact all of the other cases that are listed there, all relate to comments made on social media posts by employees about their employer, and in relation to which the employer became aware. Not necessarily aware because the employee told them or fellow employees told them, but on a couple of occasions where customers and clients told them about the posts.

So if we can just very quickly . . . Glynn v Carlow Dental Centre, this has a similarity to Wix insofar as Ms Glynn, who was a secretary I think in the practice, had put a personal post on her Facebook in relation to refugees. And one view could be seen to be critical of the Irish government's attitudes to refugees, and could . . . I'm not saying this is what she intended, but could be interpreted as a statement saying, "Ireland for the Irish. Why the refugees here?"

That was brought to the organisation's attention by a client, and the company decided that that was inappropriate. It was linked to the company, it was associated with the company because it was brought to someone's attention. Somebody knew she worked there, made the connection, and told the employer. She was dismissed in what must be described as a fairly summary way, and she brought a claim for unfair dismissal.

One of the key takeaways from the Irish case law and from some of the UK case law is these cases thus far have been determined along what I might describe as fairly standard principles, namely the need to conduct a fair procedure if you're going to discipline someone, including the right to natural justice rights, the right to understand what you're accused of, the right to be heard, the right to be heard by someone impartial, those sort of fairly basic provisions. And in some of the cases where the employee has been successful, the company hasn't done that.

So that's got nothing special to do with social media. It's more to do with the generality of the requirement to conduct a fair and objective process.

 One of the other features that's come out from the case law, and this goes back to the poll that was done at the start, is the absolute necessity for employers to have a social media policy and to implement it.

And I see that, from the poll, 61% of respondents said they did have a policy, but interestingly, when asked the second question about training on social media issues, 80% said they did not.

I think for employers to put themselves in the most robust position to defend their actions should they face a situation like these cases we're talking about, then they must do both. And that's no different from any other type of policy and no different from any other type of disciplinary scenario.

Looking at the School Secretary v A National School, one of the key standouts from that case . . . And again, this was a comment made on Facebook. It was derogatory about the workplace in general. Not derogatory of any particular individual in the workplace, but derogatory of the workplace in general. It came to the employer's attention.

But interestingly, in the decision, the adjudication officer in the WRC said there was no policy. The company had no policy about training. It had no policy about social media generally. The employee had no prior disciplinary record. She had good service.

And so there are two interesting takeaways from this. One, the lack of policy was severely criticised and was primary in the finding that the dismissal was unfair. And secondly, it became apparent that the particular post that caused the problem had been up on the person's Facebook page for over a year without anyone saying anything about it.

And that's relevant because one of the key complaints that employers frequently justifiably make of these posts when they take action is, "That's damaging the business. It's damaging our business. It's bringing us into disrepute".

In this particular case, nobody said anything about it for over a year, so there really was no evidence of any damage to the reputation of the business. And that was held to be relevant by the adjudication officer in terms of the fairness or otherwise of the dismissal.

O'Mahoney v PJF Insurances is an older case which went before the old Employment Appeals Tribunal, which some of you may remember. It was replaced by the WRC in and around 2015.

And that was a case where the employee had made Facebook posts about a director, and it named the director and used expletives when describing the director of the business, and the company took action against the employee for doing that.

The dismissal was held to be fair, because the employee's conduct was deemed to have kind of destroyed the working relationship.

And again, one of the issues we'll come on to is, "Is an employee entitled to express their views privately on their social media feed?" And I think the fundamental proposition there should be yes, but the employee has to be careful because most social media feeds . . . And I guess this is where my age will count against me. Most social media feeds are publicly accessible. I know you can have private accounts, but if you put it out there publicly and someone sees it, then you're publishing it to the world at large.

And if you publish it to the world at large, it's difficult to then say, "Well, that's none of your business", if it's about the company and it gets back to the company.

The last case there, Kiernan v A Wear, again, is an older case. It had gone to Appeals Tribunal. But again, it was comments made on what I think might be a now-defunct site, Bebo. I've heard of it, but I don't know if it exists anymore, and I don't know how popular it is if it does exist.

It was comments about individuals within the business, critical, complaining, using bad language, clearly identifiable to work, people picking it up, people reporting it back, and the company taking action.

In this particular case, there were fairly expletive written comments by Ms Kiernan, who worked for A Wear, but the tribunal held that the sanction of dismissal was disproportionate because while they were bad, they weren't dreadful.

That's interesting, and that reflects the kind of general predisposition of the Employment Appeals Tribunal, and now the WRC . . . And this is a predisposition, which is kind of mandated by legislation to say, "Well, look, dismissals are presumed to be unfair, so it's for the company to prove that it's fair, both from a substantive and procedural perspective".

Next slide, please. Some UK case law. And again, as I said earlier, we do look to the UK quite a lot for guidance in relation to case law where we don't have any of our own.

It tends to be a little bit ahead of Ireland in certain areas of law, but the principles are basically the same. In fact, the legislative structure in employment law between Ireland and the UK is very similar in broad structural terms.

One of the cases that's interesting is this "Dante's Inferno" case. I should say in general terms, my experience . . . I'm from Scotland and I used to practise there, but I've been in Ireland a very long time. One of the differences I believe exists between the UK and Ireland in terms of how the law is administered is the UK courts and tribunals tend to take, in my experience, a more straight down the middle approach, whereas certainly in employment law, the Irish WRC tends to take a more pro-employee approach as a starting position.

That's not a universal statement. Therefore, you might find that some UK case law tends to be a little bit more harsh, on one view of it, of the employee than the equivalent decision in the Ireland might appear.

But because of time, I want to refer to Crisp v Apple. So Apple, obviously, incredibly well-known company. You'd expect it to have social media policies. You'd expect it to have more social media training. It did. Mr Crisp worked for them as a sales assistant. He posted criticisms of their products with sarcastic comments attached, and he was dismissed.

 The company was able to demonstrate that this was completely unacceptable. He worked for Apple, he was employed to promote Apple, he was associated with Apple, he'd had training, they had policies, they conducted a fair procedure, and his dismissal was upheld.

Very briefly, Preece v Wetherspoons. Obviously, Wetherspoons is a pub group. He was a manager of a pub. He made critical comments about customers, which came back to the attention of the employer, and he was dismissed.

This is one of the cases which first expressly connected social media posting to human rights and the right of freedom of expression, which is one of the, I think, two significant kind of add-ons to the norm when you're dealing with social media and potential disciplinary action in an employment context. The second one being GDPR.

In that case, the tribunal, which upheld the dismissal, said there is a right to freedom of expression, of course there is, but it doesn't prevent dismissal. And I think that's an indicator that just because you are stating what an employee may expressly say are personal opinions on a social media site, it doesn't mean that that cannot have consequences.

I mean, saying, and I understand people do, "These opinions are mine. They don't represent the views of anybody else", is not a safety net for employees if, in fact, it does relate to the employer, it can be connected back to the employer, and the employer takes a dim view of it.

We're going to see in a couple of cases where I think one of the most difficult areas here is posts that are unrelated to work on their face. They're not critical of work, they don't name the employer, etc. They're probably the trickiest area in law and in the cases that have been decided thus far.

Next slide, please. Understanding employer obligations and risks. There law really hasn't been advanced in any legislative way to try and address issues like we're talking about here. We have the Unfair Dismissals Act. We have all the case law under that. We have the Employment Equality Acts. With all that legislation, there have really been no updates in the law to kind of say, "We're now in a different era. We need to legislate for the use of social media, and the use of social media in the workplace". There is none, to be blunt.

And the case law that there is, is decided in my experience thus far, as the cases I've cited demonstrate, along fairly traditional grounds: fair procedures, proportionality.

There's this concept, which I'm sure a lot of you are familiar with, which is the band of reasonable responses. That simply means that it's not the job of the WRC to say, "Well, if we were the employer, we would've dealt with this differently".

It's the job of the WRC to determine whether or not the response of the employer to a given set of facts falls within a range of reasonable responses. That means there's not one correct answer to every situation. There can be a range of different answers, and all of them can be equally right or equally wrong.

In the cases that have been decided, the need for a social media policy, and ideally training, is absolutely critical. One might think, and one might be entitled to think, in certain of the cases that some of the comments made by employees, some of the views expressed by employees, are so outrageous that everyone must know that they're wrong and they're going to be in trouble for it. That isn't necessarily true.

And there's one case in particular that is very opposite in that regard, which I'll mention in a second.

The employees need to be told. They need to be trained. They need to understand the consequences. If they don't or can claim that they don't, then it is possible that no matter how egregious their actions, the employer might find that they are criticised for not telling the employees with sufficient clarity. 

So we would always recommend a social media policy referring back to all the other types of policies the company would have: equality, dignity at work, disciplinary. All of the prohibited actions that an employer would want to bring to the employee's attention while they are at work should be referenced in the social media policy. Training is hugely advisable.

But as I said, the cases that have been determined thus far tend to be decided along reasonably traditional lines.

So I'm going to give you an example of one case where you might think . . . I'm not going to ask for a poll, but one might think that what the employee did was so bad that dismissal could be the only response. And that's a case entitled A Security Officer v A Security Company. It's from October 2020, and it's a WRC decision.

This employee was a security guard, and it came to the attention of the employer that he had, in a private Facebook group, shared a video containing images of child exploitation. That's obviously utterly horrendous, and I think most right-minded people would think, "That doesn't only merit dismissal, but it merits the Guards being involved. It's a criminal matter". He was disciplined and dismissed.

You might find the decision surprising. I know I did on initial level. He won his case for unfair dismissal and he was reinstated.

The adjudication officer in a fairly careful decision made it clear that this might be a criminal matter, but their job was to focus on the employment aspects to it, the damage done to the employer, if any, and the traditional fair procedure, proportionality of sanction, etc., and found that the sanction wasn't proportionate and the process wasn't good, and the employee won their case.

That's not withstanding the nature of what was done or alleged to have been done, because there was some suggestion made that this had been done through inadvertence and mistake by the individual.

So there you have an example of something that sounds heinous, and everyone would think, "Well, that's horrendous. That must merit dismissal", where the employee actually won their case.

There's a recent English case that is quite interesting, insofar as kind of the impact on the employer. Some of the English cases have made it clear that the employer has to be able to demonstrate a negative impact on the business when the employee expresses views. So this is where the views expressed are not necessarily linked to work per se, but are more generally regarded as offensive or not in keeping with values.

That case, a very recent English case called Omooba v the Global Artists and Leicester Theatre Trust, a 2019 decision. Ms Omooba was an actress. She wasn't an employee. She was a contractor. But she was hired to play a part in a production in the theatre, in which she was to play a lesbian.

And prior to the show commencing, a post that she had made several years ago expressing anti-LGBTQ sentiments surfaced and then circulated. The Trust terminated her contract, and they largely did so because of the backlash they were experiencing, not from employees, not from senior management, but from the public against the production on the back of this post.

So she brought a discrimination case against the Trust. She couldn't bring an unfair dismissal case because she wasn't employed. She lost, and the tribunal in England took cognisance of the fact of the public backlash and the damage that was doing, and the very real damage it appeared that was doing to the Trust.

This slide in front of you, the Viral Post Dilemma, immediate response, I think this is incredibly difficult for employers. What do I mean by this slide? There's been quite a lot of evidence in this, videos being posted by employees of the day they were told they were losing their job due to mass redundancies. And unfortunately at the moment, there are lots of companies making significant scale redundancies. People putting posts on TikTok of them clearing their desks, colleagues in tears, etc.

From an employment perspective, I don't believe there's anything an employer can do to try and prevent an employee from doing that, particularly if they're already losing their job for some other reason. But I think employers should, where possible, have some sort of contingency plan to try and mitigate the damage to the business done by that sort of posting.

I don't think that's a particularly legal response. I think it's more a kind of communications/PR/messaging response that the employer has ready to go to try and respond to some of these criticisms that people just put up online. I think from a legal perspective, there's very little that can be done for the employees already on their way out the door.

Some employers I know have put in place, and these would be significant employers, kind of crisis management plans to try and be ready to deal with the fallout.

There's loads of fallout when there are mass redundancies, and a very difficult time for lots of people. But some employers have put in place crisis management plans to then deal with the posting of videos relating to leaving the office, clearing their desk, picking up their box, and walking out. And that's quite a sensible approach to try to mitigate the risk. I think it is a question of mitigation as opposed to prevention.

Next slide, please. This is one of the most interesting topics, and one of the most particular, I think, to social media posts as opposed to any other form of comment that might cause the employee to find themselves in difficulty with an employer.

Freedom of expression. There is absolutely a freedom of expression. Everybody knows that. But as I said earlier, citing, "These are my personal views. I have a right to freedom of expression. I have a right to my privacy", which is slightly different and which I'll come to in a second, isn't a panacea for employees. It's not a complete shield to criticism.

And such case law as there is that has looked at kind of the conflict or the tension between freedom of expression and an employer's right to discipline employees and take action against them for social media posts clearly recognises that there is a limit to the extent of the freedom of expression when it comes to an employment context.

So if an employee says something online that's critical of an employer, it comes to the employer's attention, I don't think citing freedom of expression is going to work.

When the employee says something that is more generally critical of something . . . So take the example of Ms Omooba, a post critical of LGBTQ. I was going to say take Ms Carey, but she may not be a great example, because while her views had nothing to do with her employment, her employer was Israeli.

But let's say she'd expressed a view like that and she didn't work for an Israeli company, and the company decided that they could link it back, they didn't agree with its values, they didn't want people to say things like this, and she was dismissed. Would freedom of expression protect her sufficiently if she was dismissed? I'm not sure that it would.

Forgetting about the employer's fair procedures and all that sort of stuff, if this core question is the key to a case . . . Let's say the procedure has been fair and there's really no criticism of it to be had. Then will this issue saying, "I'm expressing my personal views. It's got nothing to do with you. It doesn't refer to you. I'm entitled to express these views. You may not agree with these views, but they're mine", would a dismissal be upheld as being fair if everything else was fair by the employer? I have a feeling it probably wouldn't, but there's been very little case law in this country about that.

There have been a couple of European Court of Human Rights decisions. One of the most well-known in this area is called Melike v Turkey. It's a 2019 case decided in 2021, where Ms Melike was employed with the Turkish Ministry of Education. She put up posts. They were concerned that the posts were offensive to teachers and pupils. She was dismissed.

She claimed her right under Article 10 of the European Convention of Human Rights had been infringed, her right to freedom of expression. And the court agreed, but they were very clear to say that there's a limit to that.

Part of the reason she was successful in the case was because the publication of these negative posts was quite limited. There wasn't any great damage that could be proved by the employer, and the courts of Turkey were criticised for not producing any evidence about the damage that they claimed they'd suffered because of these posts.

 So it's recognised, it's relevant, it's significant, but thus far it hasn't protected employees to the point where it means that their dismissal for expressing views has been deemed unfair just because they've expressed those views.

Now, it's going to come up in this country soon in Ms Carey's case against Wix. It's going to feature very significantly in that case, I suspect. But I think in that case, there are also going to be issues, and again this is based on media reports, about the process the employer has engaged in, in terms of the fairness and proportionality of the process.

Next slide, please. I've talked quite a lot about fair dismissal process, but before I say a little bit more about that, just for the last couple of minutes, I just want to touch on what I think is kind of . . . it's not unique, but it's a significant point. And that's privacy.

People have a right to privacy. That's well established in law. But where people are putting up posts that are publicly available, I think they're compromising the right to privacy and I think they're going to lose or run the risk of losing their ability to claim, "That's private. It's none of your business". How can a public post be none of anybody else's business? To my view, it can't.

A fair dismissal process, again, all the case law has demonstrated the consistent principles: fair process, proportionality, band of reasonable responses. What does a fair process look like? Well, I'm sure a lot of you have the experience of handling disciplinary procedures. It's basic principles: right to understand what you're accused of, right to be provided with information, ability to defend yourself, potential right to representation, which is limited, right to an impartial adjudication, right of appeal, all those sorts of things.

The case law such as there is on social media dismissals, and it's mostly dismissal law where this has come up, these are still absolutely prerequisites for an employer to justify their process.

Next slide, please. So some takeaways, if I may.

Policy is essential. Implementation. This is a universal comment, in my experience. It's no good having a policy unless you implement it, unless you train people, they're educated about it, they're aware of it.

Well-managed HR processes. That's slightly tautologist, but you have to have them.

The law of unfair dismissal is correctly, from a societal perspective in my view, framed in favour of the employee. Dismissals are presumed to be unfair, so the onus is on the employer to justify its actions and prove it's acted fairly, proportionately, and reasonably from a substantive, i.e. "Why have I done this?" and procedural, i.e. "How have I done this?" Absolutely essential.

There are going to be tensions. The right to privacy, the right to freedom of expression, they're going to come into play, and I think that's going place a significant emphasis on the proportionality of an employer's response. I do think that evidence of potential damage and harm to the business because of social media posts is going be critical.

And I've already mentioned training.

So I'm happy to field whatever questions I can.

Victoria:  That's great. Thank you so much, Peter. I think we can all agree that was really thorough and really does show just how far reaching and, as you stated at the start, the ever-evolving area that social media really is having on all of our lives.

And certainly what I find very interesting is, as you said, trying to find that balance between someone's right of expression, and yet also the employer trying to manage the expectations of their employees. So thank you so much.

We do have a few questions, so we will try to get through them. If anyone does have any others, please, again, feel free to add. We'll get through as many as we can.

So one of the questions that came up . . . and I have seen this in some policies, but it'll be interesting to get your take, Peter, if you think this would be effective. Would you recommend advising all staff not to state their place of work on their social media platforms and putting this as a clause within a social media policy? Would that help employers?

Peter:   It might, but the use of social media is so prevalent and it's used for all sorts of positive purposes that I'm not sure how realistic it is to try and . . .

Well, first of all, there's one view that says it's a slightly draconian thing to suggest that you can't tell anybody where you work. That's one interpretation of saying, "Don't put it on your social media feeds". But then in other ways, organisations want people to say where they work because they want them to promote it. People want to promote themselves.

Take LinkedIn. LinkedIn is a key recruitment tool these days. People's social media history can also be used, I think, by recruiters, and we might touch on that in a moment. But I think it's unrealistic to say, "You can't say where you work".

Again, go back to policies and what should be in a policy. It should be made clear you're not to be expressing views on behalf of the business. You're not to engage in any conduct that would otherwise fall afoul of any other policies you have. For example, equality. Just because you're doing it outside of work doesn't mean you can sort of bully or harass a colleague, all that sort of stuff.

But I think that step of saying, "Don't say where you work", is probably unenforceable. I think it's unfair and I think it's probably fairly unrealistic.

Victoria:  Yeah, I would agree. It's difficult. I suppose some employers are taking the view they want to avoid all risk, but with that, it may not be enforceable. But also, as you said, it avoids the positive aspects.

Yes, LinkedIn is one of the most popular platforms. It can have very far-reaching implications. So if your employees aren't utilising it, you're losing that aspect of promoting the good aspects of you as an employer.

It's trying to find that balance then. But some employees have to be trained as to what they can and cannot post on it. So that's great.

One other question. Can we look into prospective employees' social media history before hiring, and what do we do if we may need to revoke a job offer?

Peter:  Can you? I think the answer to that is probably yes. I mean, this is where kind of privacy and GDPR concerns come into play. I think the Data Protection Commissioner here has recognised that companies have a legitimate interest in protecting their business.

Monitoring employees' or prospective employees' behaviours, whether inside or outside work, is generally to be very limited and not to be encouraged. But it is possible and there are certain justifications.

It happens. I mean, that's the reality. It happens. Whether people are promoting themselves on LinkedIn or through other social media channels, it happens as a matter of reality in recruitment and other employment-related spheres.

Could you revoke a job offer if you found out . . . Let's say you've made a job offer, you're doing some background checks, and you come across something you don't like. Can you revoke a job offer? I mean, the answer is probably yes, you can. Now, there may be limited legal consequences for doing so.

As I'm sure everybody's aware, certainly in Ireland, you can be discriminated against under the Employment Equality Acts before you start employment.

If you don't get a job because you're deemed to be too old, which would be a major issue for me if I ever had to go into the job market, then you can bring a claim. That's discrimination. So social media posting might not fit within one of those categories, but there is that specific example.

But more generally, once an employer has offered employment and the employee has signed the contract, given their notice, is due to join in a few weeks, and the employer discovers something, or occasionally, although fairly seldom, just decides they can't do this anymore, they do potentially have a legal exposure to the employee who's relied on them taking action on foot of the contract.

But that legal exposure is generally quite limited. And in most cases, it can be limited to the amount of notice the employer would have to give the employee if they had started and it wasn't working out, which in most instances, the starting point is quite limited.

I think there's a reality to it that this happens, and I think to some extent it is permissible.

Victoria:  Yeah. Would you recommend, then, that if employers are taking out those checks, that it's part of either a recruitment policy or that they make it known to candidates that they are going to check?

Peter:   That's a very tricky question to answer. It's a good question. I mean, generally speaking, as a matter of law, if you're going to make an offer of employment conditional, you need to say it, right? And if the conditions aren't fulfilled, typically employment history, sometimes qualifications, etc., positive references, then you can say, "Well, the conditions weren't fulfilled".

Therefore, I suppose there's a logic to saying, "Well, we're going to check your social media history, and if we find something we don't like, then we reserve the right to revoke the offer". It just strikes me as something most people wouldn't be all that keen on saying out loud.

Victoria:  Yeah, they probably wouldn't.

Peter:  And I'm not sure I'd recommend putting it in an offer letter.

Victoria:  Yeah. That's good. Thank you. So one question. It's a more of a scenario case one. If I am someone's line manager and we're friends on Facebook, can I simply just ignore their posts until it comes to my attention from another employee as a complaint? Or if I see it, do I need to take action?

Peter:   Well, I suppose if I'm the manager and I know something is up there that is derogatory about others in the business or the business in general or offensive more generally, and I don't do something about it, I could potentially find myself in some trouble with my employer if they subsequently find out I knew about it and did nothing.

I mean, there's an element of personal discretion and choice in this. I don't know that you're mandated suddenly to blow the whistle or call it out. But if someone in a management position receives something like that, I would've thought they probably should do something about it because they now know it.

And they potentially could find themselves in some trouble if two months later, Victoria comes along and says, "Have you seen this post?" and I go, "Yeah, I did, but I didn't do anything about it", and then the company as an entity goes, "Why didn't you do something about it?"

I would've thought there's a reasonable degree of responsibility on management to call it out when they see it.

Victoria:  Yeah. It's like that, I suppose, with any issue within the workplace.

Peter:  I think so, yeah.

Victoria:  If you're a manager, you have to call it out. You can't put your head in the sand. Otherwise, yeah, you could be leading yourself astray, or potentially it could be seen as it's almost condoned in a way, because if you don't take action . . .

Peter:   You're right. I was just about to say that. The employee could say when criticised by the company, "Well, Peter is one of my friends on Facebook. He saw this three months ago. He didn't do anything about it". So it could be used as a line of defence by the employee.

Victoria:  Yeah, exactly. That's great.

So I suppose to this next question, it leads back to your comments before about if something goes viral and the crisis management aspect of it. But if someone complains about an employee's post and they demand that disciplinary action is taken against them, possibly even asking them to be dismissed, what can we tell them?

There's obviously the confidentiality aspect of it, but I suppose where are employer's hands tied with this? They obviously want to be seen to be taking action, but still bound by confidentiality.

Peter:   I think this is a kind of generally applicable principle, whether it's social media or not. I guess the social media angle might be . . . Take that Omooba case. It's members of the public who are complaining. It's third parties as opposed to other employees.

But you see it in more straightforward or more traditional employment disputes where, let's say, it's a bullying complaint and the person who's being bullied demands that the person who is the alleged bully is sacked because of what they've allegedly done.

I mean, ultimately, that is not their business, and the employer is under no obligation to tell the complainant, whether they're internal or external . . . and I would arguably say even more so because they're external. It's just not their business.

No complainant has a right to demand . . . Well, sorry, they can demand, but they have no right to be heard in that regard. They make a complaint, and the complaint is investigated. You do end up with a kind of, "Oh, it's been dealt with appropriately". That may be slightly weak sounding, but I think an employer's hands are fairly significantly tied.

I don't think we should be encouraging on-going engagement with people who've made complaints. The complaint has been made. The employer takes possession of it, takes control of it, and deals with it.

I don't think the complainant is entitled to be told, "Well, we took your complaint, we did this, and we upheld it. We've now dismissed Peter, so we wanted to tell you". I don't think we should do that. I think that's a gross infringement of, in this case, Peter's rights, even though he's been guilty of something.

Victoria:  Yeah, absolutely. And it goes back to what you were saying about companies may need to think about bringing in strategies or crisis management plans in place to deal with massive fallouts.

And it leads very nicely, I suppose, to my next question, which is can regular training on digital etiquette and appropriate social media policy reduce potential liability if a claim or an issue is taken against us?

Peter:   I think the answer to that is absolutely yes, it can. I mean, in all the Irish case law that we researched and some of the UK case law, it's this kind of "How did you deal with it once you knew about it?" which is the same as, "There's been a fight on the shop floor", or, "Someone's driven a van into a post", or something. It's the same principle. You've got to do it properly.

And in order to do it properly, employees are entitled to say . . . Employees say all the time, "I didn't know. I wasn't trained. How was I supposed to know?" And to be candid, Victoria, in some cases they say that even though most right-thinking people would go, "How could you not know? How could you not know that this wasn't allowed?"

But the onus is on the employer, and that's the presumption. The onus is on the employer. The presumption is of unfairness, so the employer has hurdles to jump over to get to the point of going, "Look, this is fair".

And I've seen that happen in cases even where it's as plain as the nose on your face that the employee must have known that what they were doing was wrong.

There was a famous case, and I can't remember the name of it now, but it is a real case where a barman . . . This has nothing to do with social media, but it's a good example of the "you have to take your time. They have to be seen to understand".

It's the famous case of a barman up in Dublin who was seen on CCTV from the manager's office after closing up putting two bags of coins in his pockets and walking towards the door. He was intercepted, the bags were taken out of his pockets, and he was sacked on the spot for theft. And that's what it looked like, right? You would go, "Everybody knows you can't steal".

But there was no process. He was sacked on the spot. There was no investigation, no consideration of, "Well, maybe he could have been going to the other till over there", nothing. And he won his case.

Everybody knows you can't steal, but the employer has to demonstrate that that was a reasonable response to something that was in front of them.

So, in that context, policy and training, yes, will reduce liability. It won't save an unfair decision. So if the decision is inherently unfair, having a policy that says it's fair won't cure it. But it'll help.

Victoria:  Absolutely. Your employees have to know what is expected of them, and yes, you have to demonstrate that.

Peter:   Yeah, absolutely they do. I mean, examples of theft and all that sort of stuff are fairly extreme, and everybody knows, but this is an area where employees may well not know. Genuinely, they will not know. So it's really important.

Victoria:  Exactly. That's great. Well, that covers all of our questions, so just some key takeaways that I certainly got from it.

Social media is prevalent in all of our lives now, and with it, there is significant harm that can come on workplace dynamics, as well as just thinking about the permanence of our digital footprints. We can't really escape it from being a significant risk for employers.

So, as Peter stated, the starting point should always be a good robust social media policy, linking it to your other policies as well to help strengthen the importance of it, and ensuring that all your employees are properly trained in social media usage. They do just need to understand the implications of any of their actions.

And if in doubt about any of the content or anything that you have found on an employee's social media, it's always advisable just to take a breath and seek legal advice if it is potentially high risk. Don't be tempted to be reactionary just because others are pressuring you to take immediate action.

If you are interested in any of our eLearning courses with Legal-Island, please do feel free to reach out to our team.

If you have any specific legal advice or concerns, Peter and his team would always be happy to help as well. So, again, please reach out to them.

Thank you so much, Peter. I certainly got a lot out of it, and I'm sure everyone here did as well. So, I just want to say thanks again, and I wish you all a wonderful rest of your day. Thank you.

Peter:   Thanks very much.

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