The claimant was employed in what was then the Department of Social Development (now the Department for Communities). In May 2015 an anonymous complaint was made to her employer about Facebook posts she had made during an election mentioning the DUP and the Minister who headed the Department. The complaint alleged that the posts went against the principle that staff should maintain “neutral working relationships” and indeed the respondent had a policy stating employees were not to comment on controversial issues connected with the Department.

The claimant was disciplined and received a one-year formal written warning. The tribunal held that the claimant was subjected to detriment but the real issue was whether the decisions of the employer were taken based on the “political opinion” of the claimant. The tribunal made clear that it had to focus on the ‘cause’ of the treatment the claimant received as opposed to the ‘motive’. This led the tribunal to the conclusion that the disciplinary process was driven forward because of the divergence between the claimant's expressed political views and those held by the complainant and the Minister at the time. The claimant was, therefore, able to prove that the detriment suffered was on grounds of political opinion and the tribunal held she had suffered unlawful discrimination.

Practical Lessons

The tribunal was anxious about curtailing the ability of employees to express political opinions online and noted the potential “chilling effect” of doing do. The rationale behind the employer’s policy i.e. maintaining neutrality in the workplace is not relevant to the test of causation no matter how benign the motive. But what of the employee’s right to free speech?

Interestingly in Teggart v TeleTech UK Ltd NIIT/704/11 the tribunal noted that an employee posting public Facebook comments abandons his right to have them treated as ‘private’. The tribunal here appeared to echo such a stance by noting that the claimant had 738 friends, all with unrestricted access to the comments and thus they were not ‘private’ and outside of the respondent’s policies.

Whilst the current case involved comments related to political opinion, employers should ordinarily consider the circumstances surrounding the particular incident(s). This may include whether there has been reputational damage caused, evidence of harassment or bullying of a colleague and/or whether the views are purely personal or purport to represent the employer.

Ultimately, the employer will be required to demonstrate a ‘fair and reasonable’ approach in the absence of hard and fast rules about acceptable behaviour on social media.

This case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/