Christine, Seamus and up to 500 participants discuss your employment law queries in our webinar series, “Employment Law at 11”. This month they discuss:

1. NEW YEAR, NEW LAW - Working Time Regulations

The amended Working Time Regulations came into force on 1st January 2024 – they provide express rights to carry over unused holiday, codify the caselaw in the area and clarify what amounts to normal pay for the 4-weeks ‘EU leave’. Seamus will guide you through the amendments, introduce you to the new guidance just published in both NI and GB and highlight what you need to do going forward.

2. Social Media Stresses

Another high-profile case in England, Higgs v Farmor’s School, once again shines a light on the issue of social media and clashing beliefs in the workplace. Our own home-grown social media cases – McDade and Shiels - illustrate that social media and work is not just a problem in England and Wales, it’s very much a factor in dismissals here in NI. Seamus talks through the latest caselaw and steps that you can take now to mitigate risks in your organisation.

Please note that the employment law matters discussed in this webinar apply primarily to Northern Ireland.

 Cases discussed during this webinar:

1. Higgs V Farmor’s School - https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-kristie-higgs-v-1-farmors-school-2-archbishops-council-of-the-church-of-england-2023-eat-89-eat-89
2. McDade - https://www.legal-island.com/articles/uk/case-law/2023/june/mcdade-v-norman-emerson-group-limited-2023/
3. Shiels - https://www.legal-island.com/articles/uk/case-law/2023/july/shiels-v-southern-health-and-social-care-trust-2023/

Recording:

Transcript:

Christine:  Good morning, everyone, and welcome to Employment Law at 11, sponsored by MCS Group. This is our first webinar of the new year, so a very belated happy new year to you all.

My name is Christine Quinn. I'm a Knowledge Partner here at Legal-Island. For those of you who don't know me, I'm a qualified employment solicitor. I'm not practising at the moment, very much enjoying my time here at Legal-Island. I'm joined as usual by Seamus McGranaghan, a director and employment law expert at O'Reilly Stewart Solicitors. You're very welcome, Seamus.

Seamus:  Thank you, Christine.

Christine:  So what are we talking about today, everyone? Firstly, we're talking new year, new law. You heard me correctly. We have some new legislation in Northern Ireland.

The Working Time Regulations were very much, to everyone's surprise, amended, and the amendments came into force on 1 January when the supremacy of EU law fell away the day before. So we're going to be taking you through what that means and introducing you to the new guidance published both here in Northern Ireland and in GB.

And at Legal-Island, we're very much trying to work out what you guys know about the holiday pay changes in relation to Agnew and in relation to the Working Time Regulations. Do you need more help and guidance on this topic from us?

Maria is going to drop a very short survey into the chat now. If you could all take a little moment after the webinar to fill that out, it would be really helpful. Help us to help you, everyone.

Secondly, we're talking about social media stresses. So there's another high-profile case in England, Higgs v Farmor's School, which shines a light on social media misuse or use and clashing beliefs in the workplace.

We've got our own home-grown cases, McDade and Shiels, to illustrate that social media is not just a problem in England, but it's very much a focus of disciplinaries and dismissals here in Northern Ireland as well. So we're going to get you up to speed on that.

So thanks as always to your sponsor, 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, head to www.mcsgroup.jobs.

So we are talking about social media today. Legal-Island has an eLearning course to help you with that. It will help your employees understand the repercussions of social media misuse, both on a personal level and for you as their employer.

It will take them through the impact of social media, legal considerations and risks, and also teach them responsible use of social media. And as part of that, you can also get a tailored social media policy for your organisation.

The details are on screen there, and you'll also get some details in your post-webinar email.

As usual, we're going to start with some poll questions just to make sure everybody is awake this morning. So when you're ready, Maria, you can pop the first question on for us. It's all social-media-based this morning.

So does your organisation currently have an up-to-date social media policy? If you could click yes or no, that would be brilliant, just to give us an idea of who we're talking to this morning, how clued in you are. So very clued in, I would say, Seamus. Eighty-one per cent. We bang on about policies all the time on Employment Law at 11. People are actually listening.

Seamus:  Yeah, that's excellent. Eighty-one per cent, so we're right up there with it. I think probably for employers that are looking at bringing together a staff handbook or looking to do a review of their policies and procedures, it's one of the policies that you just need to have now. Maybe 10 years ago it was different. MySpace and stuff like that. I don't know. I'm really showing my age now with all of that.

But it's a different arena altogether. And now we have X and so much that happens on X, formerly Twitter. I think we still call it tweets. We're not Xing or anything like that. But I think there's so much there.

It's clear that a lot of these cases, and certainly a lot of the case law that we'll go through later on, are all related to the social media posts, and the vast majority of them seem to be still related to Facebook.

So that is interesting just around where people have . . . you'll see quite a lot where people are saying that, "The views expressed here are my own". Is that sufficient? Does that allow you to say what you want to say on social media without repercussion?

Are you using your social media for business purposes? A lot of us use LinkedIn in relation to that, and a lot of people use Twitter for it also. And what they post on one platform, they automatically hit a button and it goes out to everywhere.

So it's not really just about having that social media post, and I'll touch on this a bit more whenever we get into the question and the queries, but it's more also about making sure that you're aware of people within your organisation that are using social media for the purposes of the business. It raises a bar there in relation to it and there needs to be those discussions and conversations.

Again, it's all about making your employees aware. It's the communication point. What are the expectations in relation to this? Because if you come at it from a behind-the-line post of not having a policy, or where you've had a policy but haven't done any training in relation to it, it very much weakens your position.

So it's good to see that people have the policies. We'll maybe look at that further in relation to what are the next steps after that when we get to it.

Christine:  Yeah, brilliant. Well, we're actually going to find out now if they also train their staff. So let's see if people just have a policy and bang it out in an email, or whether they're actually getting into the nitty-gritty with staff.

So if you could vote yes or no on that. Do you currently provide all staff with social media awareness training? Yes or no?

Let's see what people have to say on that one. So the scales have tipped.

Seamus:  That's really interesting.

Christine:  Yeah, so 71% are not training their staff. That can cause difficulties, can't it, Seamus?

Seamus:  Yeah, absolutely. It's that old adage of "Do you have a policy for that?" "Oh, we definitely have a policy on it, but we haven't looked at it. We don't know what it says".

What I get and what comes across my desk is that, "We do have a policy on it, it is available for staff, but no one has requested it". Whenever they're on-boarding, as they call it now, or doing their introductory aspects, "We give them a copy of it". Is that sufficient?

And we think about the McDonald's case where last year there were very serious allegations of sexual misconduct and harassment in relation to McDonald's generally as a franchise, and even some of those more relatable cases in Northern Ireland about it. Some of that research was saying that whilst the employees were making the McFlurrys, they were also looking at the device to watch the on-boarding video about harassment and behaviours in the workplace.

But really, there does need to be a time provided to the employee, and that needs to be documented and recorded. If you get to a tribunal case, you can bet your bottom dollar that the employee is going to say, "I don't remember getting trained about that. That never happened". So you need to make sure that the training is recorded, and it's documented also.

Christine:  Yeah, brilliant. Thanks for that, Seamus.

And then we've got a final poll question here, just a wee bit of information gathering for Legal-Island, if you don't mind, everyone. So would you like more information on how we can assist you in both areas? If you can click yes or no, and somebody will reach out to you.

Hopefully the information you receive today will encourage you to reach out to us for the help, because it is extremely important that people don't just read a policy or click a box that says they've read a policy, but also that they've been trained in that.

So that's brilliant. Thank you so much for joining in, everyone. Let's get started. And please remember to drop in your questions for Seamus as we go.

Seamus, Working Time Regulations, holiday pay, help us solve all our problems on that. Where do you start?

Seamus:  Well, I suppose the interesting point about this was that I don't think any of us were aware that these amendments were planned or that they were going to come in. They seemed to have been very much brought in on a very quick step. But there is a reason as to why that has happened.

Ultimately, whenever we come to Working Time Regulations, we'll all be pretty familiar, or we should be pretty much familiar with the Working Time Regulations (Northern Ireland) 2016.

So there are 2016 regulations here specifically for Northern Ireland, and they implement the Working Time Directive from Europe. And the aim of the directive, just to give a bit of background to it, was to ensure that workers themselves were protected against those adverse effects on their health and safety caused by working excessive hours or having inadequate rest breaks or disruptive work patterns.

So that's where we get our information and our guidance in relation to holidays, but it also covers things off in relation to a maximum 48-hour working week over the reference period, which we'll probably have to get into as well, that word reference period; a daily rest period of 11 consecutive hours in the day; and rest breaks where the working day is longer than six hours, which is your breaks that you get during the day that you have a legal entitlement to.

Also, your statutory right to 5.6 weeks' pay annual leave. We'll talk about that. And then sort of those more intricate things, like the health assessment for workers and young people and things like that.

But what we had come in . . . and I think that the legislation sort of was made known on 21 December, just at the end of last year. The legislation is known as the Working Time (Amendment) Regulations (Northern Ireland) 2023.

The aim of the regulations really was to ensure that those EU-derived rights relating to annual leave and employment pay were maintained, and that was because we had the Retained EU Law (Revocation and Reform) Act 2023, which was coming into effect on 1 January.

So we've had these amendments that have been made to the Working Time Regulations that have also come in on 1 January, and the purpose of that has been to protect and ensure that the regulations are protected in relation to that.

Also, they do some things as well. So what we can say generally, and I'll maybe go into further detail on each one, but in general, you have the right to carry over annual leave where you haven't been able to take it due to being on sick leave, maternity leave, parental leave, whatever it is. So it covers off issues in relation to carryover of annual leave.

It also doesn't just relate to if you've been sick or for family reasons. It also covers the position where your employer has failed to inform you of your right to paid annual leave or enabled you to take it.

Christine:  That's pretty significant

Seamus:  Absolutely. What that does, and I suppose this is the important point for anyone listening into the webinar today, is that there is a push and an onus now in legislation on the employer to remind your employees, to update them, to help them to use their annual leave.

And I suppose we always have those employees within the organisation. Some are really good at taking the leave. When you come back on 2 January, they're looking for details of when the business is going to be open and closed during the year and when they can get their holidays booked.

But there will also be those ones that are really bad at taking their leave. You're getting to the end of the year and they're sitting with a whole lot of days to take and you're thinking, "How are we going to do this?"

So the idea is that the leave should be spread across the year as best as possible. You will get employees that will come and say, "Look, I have an anniversary coming up this year. We want to take two weeks or three weeks", or, "I'm going to visit a relative in Australia and we're going to need three weeks", or, "We're going to Disneyland, and we need the time in order to do that". That's the sort of ones that come along. And then there are the weddings and other bits and pieces.

So you'll get people that are very proactive about it, but you'll also get . . . That's where the problems arise and that's where the carryover issue starts to happen, and you're looking at your policy and procedure to see what it says.

So the other thing then is just that the rate of pay for annual leave that is accrued comes under Article 15 of the Regulations. There is a document that is available. I thought it was quite a clunky document. I didn't think it was the most digestible document. I think it's Business and Industry. It's this document here.

Legal-Island have information up in relation to it. Labour Relations Agency have also some information available as well in relation to it, which is more digestible. Then there's good information just available on the Department for Economy, and there's a bit about employment rights and things like that, and they've updated the section in relation to holiday pay.

Holiday pay is something that's always at the forefront of our minds, really, because we've had Agnew and we've had that long saga in relation to it. So I was maybe just going to delve into it a little bit more and maybe cover off . . . The two main aspects, as I see it, are there's the carryover of holidays and holiday pay, and then there's also the payment of leave and what happens in and around the payment of it.

And there's no doubt, Christine, that these issues do touch on all of those classic holiday issues and problems that arise and that have been dealt with by years of case law, and ultimately for us with the Agnew case and the bringing about of the Supreme Court decision towards the end of last year as well.

So the first thing you really need to look at is the carryover of holidays and holiday pay. Everybody will be sort of familiar enough with the position here in Northern Ireland, that we have our entitlement to our four weeks' leave under the EU Directive, and then we have an additional 1.6 weeks' leave that brings us up to our 5.6 weeks that is based purely on UK law.

There are lots of arguments that Agnew delves into. I'm not going to go into it this morning, but Agnew delves into, "How do you apportion that? What is the EU element of your leave? What isn't?"

So there are lots of complications in and around that. But in general, if you're a full-time worker, you have the ability for a minimum of 5.6 weeks' leave, and you always need to look at your contract to see if you're getting any more on a contractual basis. But the bare minimum for a full-time employee is the 28 days, or the 5.6 weeks.

What we have, then, under these regulations, they amend Article 15 of the original 2016 Working Time Regulations, and what they say is that workers will be able to carry over 5.6 weeks' of leave. So all of your statutory leave, you can carry that over into the next holiday year if you've been unable to take the leave due to already being on statutory leave, so the likes of maternity leave, adoption leave. Just to make that clear, that's the 5.6 weeks. That's the full entitlement.

So if you've been off for a year on maternity leave and you haven't been able to use your holidays, you can carry those over into the following year.

And you can imagine the headache that that creates for employers. There's an employee coming in with essentially, then, 5.6 weeks already. They could have more in their contract. And then in addition to that, the further 5.6 weeks and how you work that out over the year.

A lot of times when people are returning from maternity leave, they will look at using their holidays that they've accrued and built up. And maybe just for that sort of reintroduction period, the gradual approach to returning to work again, holidays can be used for it, which is helpful.

But it could potentially be a significant amount of headache for someone that's coming in with double their holidays, essentially, back at the end of the year.

The second one is that workers can carry over four weeks' leave if they're unable to take their leave because of sickness. So if you've been absent from work for the holiday year, you can then carry over four weeks. So you don't get to carry over your 5.6 weeks, just your four weeks, if it's a result of sickness. Obviously, if it's a statutory leave, it's a full 5.6.

Interestingly, what the amended regulations say is that that you can carry over the leave for a further period of 18 months from the end of the leave year in which the entitlement originally arose. So it does put in a period to say that you have to use the leave within those 18 months. That's helpful, because you do get a lot of queries and questions arising in relation to the position around that.

And then also, in addition to that, it does say that workers are able to carry over four weeks' leave where the employer fails to recognise a worker's right to paid annual leave. So I think that relates to more if you have been miscategorised as self-employed and not a worker or an employee.

Christine:  Sorry to interrupt, Seamus. I think that comes from the Pimlico Plumbers cases where they were saying, "No, you're not a worker, so you're self-employed". And then I think the court took it in view of that behaviour.

Seamus:  Yeah, that's right. And the second one is where the employer fails to give the worker a reasonable opportunity to take their leave or to encourage them to do so. That's interesting, I think.

Then the last one is where the employer fails to inform the worker that any leave not taken by the end of the year, which can be carried over, will be lost.

So it does seem to me that you can still facilitate that snooze-you-lose aspect, but not in that format any longer, because you can't sleep on it. There's an onus on the employer here to essentially assist the employee in using their leave.

That's the real classic problem, that people get to the end of the year and say, "Look, I haven't had an opportunity to use my leave because it's been so busy".

And when you think about what has happened over the last couple of years, we've obviously had the pandemic and then we had the Big Resignation. A lot of people have had to essentially pick up the slack where there have been problems in terms of recruitment, and that has resulted in problems arising for people to be able to take their leave.

So if you're specifically saying, "Look, I haven't been able to take my leave because of workloads and issues that have arisen", there's a sound argument that you can carry over a maximum of four weeks into the following year.

And I think probably the important message is that you're going to have to have a process now where you are monitoring an employee's annual leave throughout the year, and you can't just leave it in their hands. This is specifically for those employees that are bad at taking their leave and tend to leave it until the end of the year.

What can really be a challenge as well is where you get the employee that comes and says, "Look, we can't plan our holidays because we have a sick relative or because we have an event that's taking place. We're going to be moving house and we don't know when it's going to happen", and they save that leave. And then you get to the end of the year and there's a problem with the leave itself.

What you don't want to happen is that aspect of having to carry over loads and loads of annual leave from the year before, because it creates a problem in the following year.

Christine:  Yeah. We've got a question, Seamus. I think it fits in very well here. If someone was off long-term sick, so for two-plus years, how much accrued leave are they entitled to be paid if they decide to resign from your employment?

Seamus:  Well, on the sickness basis you're carrying over the maximum of four weeks under the regulation, so it's not the 5.6 weeks. And it's clear there that under the regulations, you can carry that over for a maximum period of 18 months.

You do need to be careful about it, because it's 18 months from the end of the leave year in which the entitlement originally arose. So as long as that doesn't cause any problems.

But it's helpful in the sense because that has been part of the problem with Agnew, as well, that people have been saying. What is the period for this? How far can you go back?

There are all those Agnew arguments, particularly around if there's been a break and calculating when the leave starts and ends and all that sort of stuff. But the legislation on this is fairly clear that you have the period of the 18 months to carry over. So if somebody's leaving, that's when the accrual would be, as I see it.

Christine:  A bit of fancy footwork and calculations would need to go on. You're going to have to get your little plan out and start working out when would the leave year start and end, when they were off, the leave during that period, and roll that over. Well, I would say I wouldn't fancy doing that calculation, but . . .

Seamus:  No. It's complicated. And I'm sure that there are really good applications and software that a lot of listeners will use that will assist in relation to doing those calculations. But sometimes, as you probably remember from your days in practice as well, you just have to get the notepad and the pen out and work through it and get to the point where you're figuring it out.

It's not easy to do, particularly whenever you've got people working part-time hours, maybe shift work, and certain days of the week one week and different days the next. It is difficult in relation to it.

The other point just then in relation to it is the payment of leave. And what's interesting there is that you have an amendment to Regulation 20 of the Working Time Regulations, and it says that the leave is paid under Regulation 15.

The payments include commission payments, which are intrinsically linked to the performance of tasks which a worker is obliged to carry out under their contract; payment for professional or personal status relating to length of service, seniority, or professional qualifications; and other payments such as overtime payments that have been paid regularly to your worker. And then they say, "In the 12 weeks preceding the calculation date".

So two points there, as I see it. You have to look at this aspect of what is normal pay. And we know the case law that has built up over the years of what is normal pay. If my normal pay includes my commission payments, if it includes my overnight stay work . . . I'm trying to think of some of the other examples going back to the [BA 00:24:46] case and the big chunk of cases that are on holiday pay. You have to look at what is normal pay, but the legislation is making it clear now through the regulations that it does include that additionality.

Then also this idea that it says that you have 12 weeks from the calculation date. Now, we know that this is going to be difficult. We know what Agnew says, because Agnew says that your reference period for calculating normal pay should be 52 weeks. So you're looking at it over a year. And then you've got the regulations that are now saying 12 weeks.

So we're going to have a bit of rubbing that's going to happen. I suppose, ultimately, we're going to need to get some clarification either from government on it or from case law.

Christine:  Yeah. I mean, I was at an event earlier in the week and there was some debate on it. And one perspective is that Agnew says that the reference period can be 52 weeks, and people are clinging to that "can". So it's saying it wouldn't be unreasonable for it to be 52 weeks. Of course, a lot of people at the end of last year changed how they were doing their calculations to 52 weeks, because we thought Agnew gave us the answer.

But apparently, the reason the amended regulations say 12 weeks is because they would have needed to go out to consultation on changing that from the original regulations, and we didn't have a government at that time so they weren't able to do that. So it's left this kind of confusion again in one of the most confusing areas of employment law.

I heard two partners in a law firm having a very polite but definite disagreement about whether you can do 52 weeks or 12 weeks.

I think it's only going to become a problem if you have employees working lots of unusual hours and work patterns. But you really, again, need to get your pad and pen out and do your calculations. If the 52 weeks and 12 weeks and there's not much difference, then you're okay. It will be a problem, though, if it looks like you're trying to do the calculation to the detriment of your employees. Isn't that it, really?

Seamus:  Yeah, it's the wording that it said in Agnew that it's a question of fact, and the pragmatic reasons for a 12-month reference period. I mean, I think where you're able to do the calculation and it's done so on a fair basis, that it's not trying to cheat or shorten or deprive anybody, I think if that period is the shorter and it works, then I think that's okay.

Certainly, look, going back to when I started out in employment law, going back to 2003, in and around those periods, your 12-week reference period was always sort of what you used as your guiding principle. But it maybe just didn't work in the test case that you would have done and the employee might have come back and said, "But that doesn't work because of X, Y, and Z", and you would have always looked to try to do it as fair as possible.

So I think the key principle, that's what it is. But it's just to bring that to everybody's attention, that there's a bit of rubbing. And it's interesting that if there had been consultation on it, what that might have looked like.

Christine:  Yeah. I've just got a wee bit of a clarifying question. So somebody's asking about the carryover of four weeks' leave when you're sick. That is only for long-term sickness, isn't it? It's not ad hoc, "I've got a cough, a cold", and then suddenly reset my holidays. That would be very unusual. So just to clarify, it's only for those people on long-term sick.

Just keeping a wee eye on the time, Seamus, I'm going to just wrap up the Working Time Regs section here with my three takeaways really from what I've learnt today.

So firstly, employees are entitled to carry over any unused leave if they have been unable to use it due to sickness or family leave. The balance needs to be struck between that four weeks for sickness and 5.6 weeks for the family leave.

Secondly, you've got to be proactive here and regularly remind your employees of their leave entitlements, that they need to take it, encourage them to take it, and what happens if they don't take it, i.e. you use it or lose it.

And thirdly, the 52-week holiday pay reference period for calculating holiday pay as recommended by Agnew is not necessarily correct, but it's not necessarily incorrect. It could be that 12 weeks that's been codified in the new regulations. We're all divided in the legal community about what the best approach is, so you need to run the numbers yourself and see if it makes a difference. And if in doubt, give Seamus a call essentially.

Brilliant. So if we move on to our social media discussion now, Seamus, we have spoken about social media on a couple of occasions, but it is the gift that keeps on giving. It just gets bigger and more complicated and the cases coming out of the English tribunals are certainly interesting and give a good bit of guidance. So do you want to kick us off there?

Seamus:  Well, I suppose just picking up from that aspect of it, the interesting sort of social media cases that have been in our media here in Northern Ireland have focussed around sort of traditional issues, if we put it that way, where in England it has been a bit more advanced maybe in relation when you think about the Gary Lineker and social media debacle at the time and how that was handled by BBC, and particularly their social media policy or the contractual elements of the role that he had and what he was able to do and not to do.

I know that there was a lot of public intervention and a lot of other interventions that happened along with that as well. But if you break it down, you can see that it clearly highlighted the importance of having some form of policy and procedure in place when it comes to social media.

But stripping it back, everybody will be familiar with the McDade case. We've talked about it on the webinars previously. That was the case where there was a video that was posted by an employee on Facebook. It was a live stream, I think, actually, in relation to what was posted. There was chanting and singing in relation to a young lady from Northern Ireland who had been murdered on her honeymoon. We all know the background of the case without getting into it.

In short, there was a claim for unfair dismissal that was taken because the individual was dismissed. There is quite a bit in the judgement about the reputational damage that the posting of the live stream had caused for the employer, because the employee had identified on their Facebook page who the employer was and where they worked.

Ultimately, the unfair dismissal case was brought in, and in short, the tribunal accepted that the actions of the employee had detrimentally affected the employer's reputation and that the decision to dismiss had been proportional in the circumstances.

That's the general gist. You can read the decision and get the full breadth of the case.

There was a second case of Shiels, who is Mr McDade's partner. Ms Shiels had reposted . . . or not reposted, but shared and liked, if the terminology is correct on that one. If it was a reposting, I'm not sure, but she'd shared and liked the video or the live stream that had been put onto the Facebook page of Mr McDade.

She was a healthcare assistant in the Southern Health and Social Care Trust. And there were reports from colleagues to the Trust that they were uncomfortable with what had happened. And she was ultimately dismissed by the Trust for breaches of their social media and diversity policies.

In the McDade, there is a bit of talk about the handbook. I think in that case, there wasn't strictly a sort of social media policy. The Trust had an actual policy in place for social media.

And the tribunal in that case upheld that Ms Shiels's dismissal had been a fair dismissal, and they commented in the decision that she had brought the Trust into serious disrepute by her actions.

It seemed to me, as well, that a part of the tribunal's thinking around that was her role. She was a healthcare assistant who worked with the public, and that was sort of forward-facing. And that was the theme in McDade, as well, in that he was the lorry driver, I think, and he was delivering to other customers. Those customers had said that they wouldn't take a delivery if he was driving, and employees had said that they wouldn't work with him going forward.

So in the mix of all of that, sort of two clear social media cases arising from Northern Ireland. And the take on that always has to be that I think you have to have a policy and procedure in place. Any sort of handbook now needs to cover off on that aspect, whether you are a business or an organisation that does very little as regards social media.

If you're a quiet accountancy office and you don't do any social media at all, you still need to have a policy there for your employees. If they are intimating in any way on their social media as to where they work, or they're putting connections up in relation to where they work, or there are photographs of them wearing their uniform that identifies where they work, there's the risk for reputational damage for the employer.

And equally, if they are a community personality that is involved within community and people know where they work, I think it does stretch as far out as . . . I don't think just because you don't have on your social media where you work or because you put up, "The views here expressed are my own, and not that of anybody else, including my employer", I don't think that gets you off in the way that some people think that it might.

I think, as well, feeding into the policy is the communication of the policy. You have to make your employees aware that there is a policy in place, and you have to let them know what is acceptable and what is not acceptable. I think that you're on a sticky wicket if you are absolutely just relying on the fact that, "We have a policy in the cupboard and that should cover us". That will not do it.

And then I think it's the aspect of training. There needs to be active training. I think employees need to be involved in the training and scenarios need to be played out.

Years ago, back at Legal-Island, we used to do scenarios at the seminars and updates that we would do and we would have maybe two people role-playing, and how descriptive and how well that goes across compared to what someone is reading through a policy.

A lot of organisations show videos of the role-playing and things that are happening and examples of what's appropriate and not appropriate.

I think also you need to monitor your usage. Now, you have to be careful about that. There could be GDPR and privacy. But I think the bar does change and is higher if you have an employee who is using their social media for the purposes of the business.

I have a Twitter and a LinkedIn account. They're very much focussed on my job, my role, and the business here. There is a higher bar, and we need to be clear about what's there and I need to be clear about what is acceptable and unacceptable for me to put onto that.

And it's the risk and the example of you can be so easily dragged into something. If you like a post and somebody comes back and comments on it, and the next thing you're into a whole debate and you're sharing personal views, the case law shows that that's how these things unfold.

And I think the last one is really consistency in dealing with matters. At the Annual Review, I did cover off on banter, and we looked at social media around harassment and bullying and talked a little bit at the time about the various steps that the employer would need.

It's taking the needle and sewing the thread to your organisation and making sure that your policies and procedures all marry up together, and that the actions that are displayed by your management team are appropriate, that staff feel comfortable about coming forward to raise issues in relation to social media postings, and things like that as well.

So it's a wraparound process, and that certainly seems to be where the case law has moved to. I'm just trying to think of the case that we had where the tribunal specifically focussed on the training aspect and about how training can go stale. It will come back to me.

Christine:  Yeah. It has escaped me too, Seamus. I remember it, though. They kind of said, "Well, if you've been trained two years ago, that's not good enough". It needs to be regularly updated and kept on track, doesn't it?

Seamus:  Yes, exactly. So we know that the pressure is certainly on for employers and that at tribunal these will be tested, and that the tribunal will be looking for more than just a policy that's buried in the cupboard somewhere.

The further cases that have come along, Christine, there as well, there's the case of Maya Forstater as well. She was a visiting fellowship. I covered that case in the Annual Review. She was a worker for all intents and purposes, but she put up tweets about gender identity theory and her colleagues complained. They said that she was transphobic and that the tweets were offensive. Her fellowship was not renewed, and she wasn't provided with any further work. She was successful in her claim for . . . she got £100,000.

Then there is the more recent case of the Higgs v Farmor's School. So this is a Christian school. Mrs Higgs was employed at the school. She was a pastoral administrator and work experience manager, and she made comments on her private Facebook in relation to LGBT issues. Particularly, she was critical about the teaching in the school and how it focussed on discussion and rights of LGBT+, and particularly she talked about the brainwashing of children.

I think a parent it was that made a complaint to the school saying that they were uncomfortable with the tweets that were made. And the school investigated and ultimately dismissed.

There was a disciplinary process and everything that went through. And she brought claims for direct discrimination and harassment on the grounds of her protected beliefs. So this is the idea and the rub that you get of the protection of your beliefs and freedom of speech. It's the balancing act that needs to be done there.

But the tribunal initially upheld the decision and said that the dismissal was fair. She appealed to the employment Appeal Tribunal, and they said that the original tribunal had failed to properly consider whether the school's actions were related to Mrs Higgs manifesting her beliefs or not.

Ultimately, what they did was they referred the matter back to the tribunal for reconsideration. Helpfully, what they have done is they've given guidance. And whenever I was looking into it there, the guidance was actually really produced by . . . The Church of England came into the case as an intervener, and they proposed the guidance that should be looked at specifically for these sorts of cases.

There's a lot of the guidance and what it says, but in essence what it is saying is that there has to be a proportionality here in relation to balancing the rights of your protected beliefs and your freedom of speech. And you have to sort of look at everything in and around.

You can't just simply say, "Well, because you've made a statement on social media and that would appear to some people to be transphobic, that warrants a termination of your employment". You have to look at it in and around.

The types of things that they talked about was the tone that would have been used within these statements that had been made, the content of what the actual statement said, the extent of what it said, and the employee's understanding of what the likely audience is. So if this was said on a private Facebook account, your expectation was that these tweets weren't going to go out any further.

But you do have to look at everything and it has to be proportional when it comes to it. You can't just make a random decision to say, "No, that's it. It's done", and take a really strict, stringent, black-and-white approach to it, because that is not going to work, and it's likely that it is going to be held to be unfair.

Christine:  Yeah, I think the cases coming out of England around the trans identity stuff, it seems to be where the employers are falling down is when they take a reactionary response. They immediately think, "That's highly offensive", and they react almost immediately. And I think it really is about taking a step back.

What the lessons coming out of those cases are is that people can say stuff that offends you and that you don't agree with, unfortunately, and that we have to live with that. So just because they disagree with you doesn't mean that you can sack them for it.

The things that are highly, highly offensive, kind of Nazi views and stuff like that, that is where you are looking at stuff where people can be dismissed. But stuff that you just find a bit icky, makes you feel a bit uncomfortable, makes maybe the majority of people feel uncomfortable, they're still allowed to say it.

It's quite hard even for some solicitors who deal in this area of equality and anti-discrimination stuff. It's a bitter pill to swallow at times, but that is the case. People can be offensive to you, and you just have to go, "Well, I'm offended". That's really what is coming out of the English cases.

So we did have a question about how do you strike that balance between the human rights of employees to have freedom of thought, conscience, religion, expression, but then also not bringing your business into disrepute? Kind of saying stuff that may make other employees feel intimidated. So that's really the question, isn't it, Seamus? How do you deal with it?

Seamus:  Yeah. And I think that's a really difficult and challenging question, and it's those issues that we hear about and that we read about online and hear about in the news, those sensitive issues around gender identity, the rights of LGBTQ, all of the real sort of sensitive stuff that is out there. But ultimately people are saying, "Well, listen, I have a right to my opinion in relation to this".

But also, you have the balance of . . . You have legislation, and we have legislation here in Northern Ireland. We have the Equality Act in England, but we have legislation in Northern Ireland here that protects individuals in relation to their protected characteristics and getting that balance right.

So I think the key thing has to be that you do need to be careful about the knee-jerk reaction, and even where there is a public outcry in relation to it. If you take the McDade case where there was serious criticism and fingers start to be pointed, it does put the employer into a difficult position. But the key thing is that you don't knee-jerk in relation to it. You're going to have to consider everything in and around, and that has to include the balance of . . .

The commentary around the Higgs case, ultimately what it was saying was that it has to be recognised that everybody has a belief and has a view. That's part of democracy. That has to be accepted. But it's the manifestation of the belief and of the free expression, why that should be limited, and should it be limited to such an extent to protect the rights and freedoms of others. So you can really see the balance scales and how you go about dealing with it.

We probably don't have time this morning to get into that serious detail, but ultimately the employer must be clear. I think it comes around that way, that you have to sort of objectively justify your position in relation to it and you have to be able to say, "This is why I'm limiting your rights in relation to this". That's not a decision that could be made by looking at circumstances and drawing a line on it. It's something that needs to be wholly considered.

Christine:  Yeah. And somebody is just bringing up the Enoch Burke case from the Republic. That is a quagmire I'm not prepared to get into this morning exactly, but it shows you that it is happening in our nearest neighbours, and it won't be long until we're dealing with similar things here in Northern Ireland.

So just to give my takeaways, then, in relation to social media. Number one, the starting point should be a good, robust social media policy. You can link it to your other policies, such as Dignity at Work or Code of Ethics if you have one, but make sure it's a good, robust policy.

Number two, ensure that all your employees are properly trained on the policy and social media usage, and that they understand that if their platform is linked to work, or indeed sometimes even if it's not, the policy will apply to comments made outside the workplace, too.

And number three, if in doubt, take a beat and seek legal advice. Don't be tempted to be reactionary because others are pressurising you with their point of view.

So thank you very much, everyone, for all your questions today. It's been really enlightening. I think we could have gone on and on, but we'll just wrap things up.

I would just like to say I'm actually working on a great event at the minute that I'm chairing on 28 February. It's called Legal Answers to HR Dilemmas, and it's really dealing with the main choke points as we see it for HR: recruitment, probation, performance, misconduct, and redundancy.

At the end, we've got a tricky questions section where you can put your questions on employment law, and within reason, to our legal experts and they will answer them live for you. Maria is dropping a link to that into the question box now for you.

If you're going to miss myself and Seamus, you can follow us on Spotify, Amazon, and Apple Podcasts. I know loads of you have been tuning into the podcasts and we're really grateful for that. Thank you very much.

You can also drop us a line on LinkedIn. You'll find us there, and it will be great to hear from you.

Sorry we've overrun a little bit today, folks, but we will see you again in March. Thanks very much for listening. See you soon.

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