Background:

The claimant was employed as a HGV Driver for eight years before his dismissal in June 2022.   The issue arising was that the claimant livestreamed a video from his Facebook account on 28th May 2022.  This was from Dundonald Orange Hall.  Part of this video included a clip of individuals singing a sectarian song which mocked a young woman who was murdered on her honeymoon.  The Facebook account stated that the claimant was an employee of the respondent.  The video went ‘viral’ and received condemnation.

The respondent, following a disciplinary procedure, summarily dismissed the claimant for gross misconduct.   At the disciplinary hearing the allegations were put to the claimant namely:

(1)   That he had streamed a vile and abhorrent video which mocked the murder of Michaela McAreavey; and

(2)   The claimant’s actions caused widespread offence and damaged working relationships and business interests of the respondent.

To both the claimant, according to the respondent, stated he understood and confirmed the allegations were true. The claimant did initially dispute this but accepted in cross-examination that he had livestreamed the vile video and accepted that the actions damaged the business interests of the respondent.

The claimant stated that he made the video to focus on the bannerettes.  The claimant had not done this before.  The comment made on the video by the claimant was ‘atmosphere fantastic’ and had no reference to the bannerettes or culture.   There was no evidence of zooming in or focusing on any bannerettes. The claimant also stopped videoing at the end of the chant/song.

The claimant brought a claim for unfair dismissal.

Outcome:

The Tribunal did not accept the argument put forward by the claimant that he could not have foreseen the singing and conduct of others.  It was, as put by the Tribunal, not a matter of whether or not the claimant could have foreseen the conduct of others.  He had actually seen and heard the conduct, it was audible and no great distance from him.  The respondent was entitled to conclude that the claimant could not have failed to hear and could not have failed to understand what was being sung at that moment.   The claimant could have intervened or he could have stopped the livestream but did not choose either of those.  Quite bluntly, the Tribunal stated:

‘Unless the claimant had been both deaf and blind, he had known what he had been recording’

The Tribunal concluded that the respondent had followed the statutory procedures relating to disciplinary action and that they, having carried out the investigation, believed in the guilt of the claimant.  As a result, the claimant’s claim was dismissed.

Practical Guidance for Employers:

This case demonstrates the perils of social media misuse and the implication it can have on employment relationships.  The respondent outlined in this case about its cross-community workforce and how it engaged all members of the wider Northern Ireland community.  There was a clear link to how the social media content of the claimant could affect the business of the respondent.  The Tribunal made it clear that such conduct could clearly be identified and that it could be used as part of disciplinary proceedings against the claimant especially in light of the respondent being listed on the claimant’s Facebook.   Employers should think about having social media misuse policies in place which should ensure that employees are aware of their obligations outside of employment which may have an effect on their employment.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/