So, activities outside the workplace is a topic which has received a lot of attention in the media recently. And I think it used to be kind of indiscretions at the Christmas party were the activity outside the workplace that got people into hot water, but now I think social media has really changed the climate. Public and private is no longer . . . public and private is very blurred. Work life and private life is very blurred due to social media, and what we do and say is now really out there for all to see in a way that it never was even a few years ago.

So we've seen a few high-profile cases. We've got the Maya Forstater case over in England. That was a lady who tweeted her views on the ability to change your sex, and her employer took issue with that. And then we've got a few cases of footballers and a few estate agents as well.

So, Seamus, what developments have you seen in this area?

Seamus: Well, it's certainly one that has come to the fore. Certainly, if we go back to sort of recent times, there were some media cases in and around the Black Lives Matter protests that happened at the time, and the social media sort of publication of that.

And there were a number of cases where there were tweets or social media postings that were made by employees sharing their views in relation to the Black Lives Matter position. And there were allegations of racism as a result of those tweets, and employers that made decisions to dismiss and terminate contracts of employment of employees.

More recently there, we've come across the comments following the Euros final, and specifically in relation to the racist comments that were made online. Specifically, there was an estate agent in England who was dismissed from his employment as a result of comments that he made online in relation to some of the English football players.

In addition to that, there was the incident of Professor Chris Whitty in a park in London. Again, that was an estate agent. Not to vilify estate agents and footballers or football fans or anything like that, but it's those sorts of incidents that happen.

And at times, it can be around matters that really the people get passionate about with their football games or their social agendas that the people have. It can bring out the best and the worst in people. I suppose that's just a cautious reminder that comments that are placed online . . .

But looking at it, Christine, I suppose dismissals for events that have taken place outside of work . . . I mean, there's nothing new in relation to that. We've had that before. The issue now is really the blurring of the lines of private and work life, specifically in this era where we're working from home. You can really understand and see how those lines could be blurred.

Key things that we're looking at here. The key factor for consideration is whether the conduct outside of work has a bearing on the employment relationship. That is the key issue that we're looking at. And really, the types of things within that that we're looking at are, "Is there a breach of a company policy or procedure? Has the actions of the employee impacted on the trust and confidence?"

A key aspect of the employment relationship is the trust and confidence that the employer has with the employee, and if there is a fundamental breakdown of the trust and confidence, does it mean that the relationship is at an end or can it be repaired? And so the trust and confidence aspect is definitely an important one.

The bigger one will be, when it comes to social media postings, the damage to the reputation of the employer, specifically if these cases or instances are picked up by media outlets. We have that case of Jake Hepple who was the Burnley fan, and he arranged for the banner to be draped over the Etihad Stadium in England with "White Lives Matter". And he was dismissed from his employer as a result of that, and they took a strong stance in relation to them saying that they didn't tolerate any form of racism.

Christine: Yeah . . . Sorry, Seamus. I was just going to say I think previously I would've thought the profile of the employer was an important thing. But I suppose with the guy you've just mentioned, the Burnley fan, I couldn't tell you who his employer are, but they still felt that they had to take action, I suppose. So do you think it doesn't actually matter as much anymore whether you're a high-profile employer?

Seamus: Well, I think probably in relation to that case, the fact that the act was on such a large level and that it did receive significant media coverage, that no doubt had an impact.

I suppose the other side of the argument, if you do look at that case and you read some of the comments online associated with it, some people view it very clearly that it was an act of racism, that the employer was correct and that they should have dismissed the employee. And others then talk about issues relating to free speech. They talk about the right for a person to make comments, to publicly say what their beliefs or what their position is. So there's that balancing act that has to take place.

And certainly, there is a balance to be struck absolutely in relation to the employee's right to privacy and the employer's right to protect its reputation.

That said, I think, Christine, that's exactly the point about of that. Fairness is more difficult to balance if you have actions that have been taken that have a widespread impact, or where they've been picked up on social media, where they've been retweeted and then there has been media aspects that have come about as a result of it. And it certainly would put any employer under specific pressure.

But a couple of other points that I thought were worthwhile pointing out was . . . I think that there is a fear aspect for the employer to consider these matters. So if there's an event that takes place or something that takes place that raises issues for the employer, I think that the employer does need to look at whether it has impacted the employee's ability to carry out their job and to do their work after the misconduct.

I think the relevancy of the conduct to the workplace and the risk to the reputation is also important, and for me, that's probably where we would be looking at issues relating to trust and confidence.

And the damage then to the relationship. And I suppose not just between the employer and the employee, but I was thinking more so in and around the potential damage and fallout between colleagues as a result of these sorts of matters that take place as well. You could have somebody with a very strong belief that would say, "Look, I don't agree at all with that". And they could even potentially raise a grievance in relation to the employee returning to work.

So you have to think about the context of how does that person return to work and will that raise an issue with other staff and with colleagues within the workplace?

And then also, I think that the last thing really to look at is any steps that the employer could take to allow the employee to remain in their employment without jeopardising the business itself. So is there a wider impact to the employer's business?

I want to couch all that, as well, Christine, by just reminding everybody that we do have a statutory disciplinary and dismissal procedure in Northern Ireland. If there's any failing in relation to follow that, you're likely to have an automatic unfair dismissal. So it's really important that there's a fair investigation that's conducted and that you look at all other avenues to dismissal.

So is dismissal the ultimate outcome here, or are there other penalties that could be imposed instead? And ultimately, of course, why was the dismissal fair? What are the facts that are resulting in the dismissal being fair?

I think also that there are things that employers could do in relation to strengthening their position when it comes to activities outside of work, and I think that there should be a clear code of conduct that the employer has set out so that the employees are aware of the matters that could cause difficulties or that could raise concerns for the employer.

You don't always necessarily think of the actions that you take outside of work having an impact upon your job or your work. So I think any tribunal looking at that will look to see, "What has the employer told the employee about that? Is there a code of conduct?"

I think specifically . . . we've talked about this previously, but a social media policy as well is really . . . I know within your prior work as well, Christine, that you've maybe come across issues in relation to having a clear social media policy and trying to enforce that.

Christine: Yeah. I spent some time at the BBC and it was a real can of worms for us in the employment team there, because obviously, we were dealing with people with media profiles in their own right. They were also representatives of the BBC, but they also had their own minds and their own opinions on things. So even back in those days, which was maybe five or six years ago, it was a big problem for that organisation. And I think that it has just become more problematic, because social media is just so prolific. It's everywhere.

And there's also, I think, an expectation that people want to bring their whole selves to work as well. And we all love a good debate on a Monday morning. "Did you see that on TV? Did you see this on the news?" and an exchange of views. So I suppose it's just where is that line between showing yourself as a real human being with opinions and not offending other people, not letting it encroach on your work? It's a really difficult but very interesting topic I think.

Seamus: Yeah. And I think the other thing is you always need to be aware of . . . If you're going into work and you're making comments, or you're posting things outside of work, not everybody at work is going to agree. Not everybody at work is going to have the same opinion, and it's the risk that you cause offense then as a result of that.

Christine: Yeah. I mean, if you are interested in hearing a wee bit more on this topic, we're actually covering it in the Annual Review as well. So on 10 November, we've got some great speakers. Going to have a bit of a panel discussion on it. We've actually secured Peter Daly, who was my Maya Forstater's solicitor, and he's going to be joining in that panel discussion. I think it'll be a really interesting one. So it'd be great to see a couple of you there.

Seamus, do you have anything else you want to add on that particular topic?

Seamus: No, I think that that should cover it. But I do think that going forward, we are going to see . . . I mean, there is a judge and jury happening in media in relation to these sorts of matters, and I think that we will see . . . Certainly, I think it puts pressure on employers to make decisions, make the correct and make the right decisions, but make sure that they're fair and balanced as well.