In 2025, a person without any form of social media is a rare thing indeed, and the increasing toxicity of online debate is well known. Social media does not exist in a vacuum, and occasionally employees will make comments or share content which impacts their employment.

As a general starting point you should set clear expectations for employees about social media usage in an internal social media policy. This policy should specifically prohibit employees from using social media in a way which would damage the business’ reputation – for example by defaming or criticising the business or colleagues, or harassing or bullying others. The policy should set rules for employees identifying themselves as working for the business – this may be acceptable on certain platforms (like LinkedIn) but not others. Employees should be warned that breaches of the social media policy may result in disciplinary action. In your disciplinary policy, you could also identify breaches of the social media policy as an example of misconduct.

It is important that you carefully review the nature of the objectionable content. This was considered recently by the Court of Appeal in the high-profile Higgs v Farmor’s School case. In this case, a counsellor was dismissed after creating a number of Facebook posts which criticised how gender related issues were taught at the school, which were then reported by a parent on the basis that they were potentially homophobic and transphobic. The employee claimed that they had been discriminated against based on their religious beliefs.

Their claim was initially dismissed by the Employment Tribunal, which decided that the reason for dismissal was the school’s concern about its reputation. However, this was overturned by the Employment Appeals Tribunal, who decided that the Tribunal had not properly considered that the employee’s social media posts were a manifestation of her religious beliefs. This made dismissal for expressing those beliefs discriminatory. The exception would be if there was an “objectively objectionable” feature of how these beliefs were expressed, and the school’s actions were a proportionate response to that objectionable feature. This approach was endorsed by the Court of Appeal.  They concluded that “if the dismissal is motivated not simply by the expression of the belief but by something objectionable in the way it was expressed, determined objectively, then… the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature.”

While this decision is not binding in Northern Ireland, and refers to discrimination under the Equality Act, it would be persuasive. The protected characteristic in GB is “religion or belief”. Gender critical beliefs were recognised as being a protectable “belief” in the Forstater v CGD Europe case back in 2022. In NI, the protected characteristic is “religious belief or political opinion”.

You should consider the specifics of the content which is potentially objectionable. For example, if the posts refer only to the employee’s views, they are more likely to a manifestation of their protected religious belief. On the other hand, if their posts contain content which goes beyond those views by encouraging violence or discriminatory conduct against others, these specific aspects are more likely to be “objectionable” features of how their protected belief is expressed.

You should isolate the exact content which you consider to be potentially in breach of your social media and/or disciplinary policy. The line between content which is a manifestation of a protected belief, and content which is an objectively objectionable, will depend greatly on the facts, and will not always be clear. The proportionality of your response may depend on the nature of your business and services, and whether the content would negatively affect your delivery of those services, or the employee’s ability to carry them out for you.

In the Higgs v Farmor case, the Court of Appeal noted that the school had been concerned about reputational damage, but that the language of the employee’s posts did not justify the decision to dismiss, in circumstances where the employee had not made similar statements at work or displayed a discriminatory attitude to any students. It noted that the school’s concerns related only to “potential damage in the future”, given that it was unlikely that a reader would take the Claimant’s posts as representing the school’s own views, and that the main concern would be that the employee would continue this conduct in the workplace – and it was accepted by both parties that they had not. The Court considered that widespread circulation of the posts could have harmed the school’s reputation, but the risk of this happening was “speculative” at best, as the posts had been made on a personal account, using the employee’s maiden name, with no reference to the school, and had led to only one complaint. Given this, the Court agreed that dismissal had not been a proportionate response.

In Shiels v Southern Health and Social Care Trust, the NI tribunal found that an employee who liked and shared a video of a song, which the Trust concluded was sectarian and highly offensive, had been fairly dismissed. The NI tribunal agreed that the sanction of summary dismissal was within the range of reasonable responses available to the Trust in the circumstances. The tribunal noted that the claimant’s actions had had a “severe and continuing impact on the respondent’s activities in providing services to the public and would inevitably have had a serious impact in relation to the claimant’s working relationships with other employees and indeed with members of the public with whom she came into contact in the course of her work”. While the tribunal did not have to consider a discrimination-based claim, it is a helpful example of factors which may be relevant when assessing whether dismissal is a proportionate response to objectively objectionable manifestations of the employee’s beliefs.

Overall, you should be wary of hasty or instinctive reactions to what you perceive as inflammatory or objectionable content. You should carefully isolate the exact posts, phrases, images or other content which is potentially in breach of your policies. Any disciplinary action which results should be proportionate. There may be alternative actions to dismissal, such as warnings, and an agreement to remove posts which have been established as breaching your policies. Given that most contentious issues have at least two sides, you should ensure that you take a consistent approach.

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