Background:

The Claimant had been employed as a healthcare assistant by the Respondent for approximately 5 years. The issues in this case were regarding events on 28th May 2022. The Claimant, who had been at an event in Stormont, liked and shared a video on Facebook. The Claimant’s Facebook account stated that she worked for the Respondent.

The video liked and shared by the Claimant was made by her partner who had taken part in the march organised by the Orange Order. The video included a ‘vile and repulsive song’ relating to the death of Michaela McAreavey. This video was subject to other proceedings in the Industrial Tribunal as seen with McDade v Norman Emerson. As a result of the public outrage in relation to the video, the Respondent conducted an investigation leading to the Claimant’s dismissal. The Claimant brought a claim for unfair dismissal.

Outcome:

The Claimant’s argument was that when she shared the ‘livestream’ it was at the beginning, and she could not hear the noise precisely. At the outset of the video she stated it focused on the cultural bannerettes. The Claimant stated she had ‘pathetic’ signal at Stormont and was fed up watching the video so was unaware of the contents. The Claimant and her partner had deleted the video by deactivating their Facebook accounts. There was a clip of 31 seconds still available to the Respondent and the Tribunal. It is notable that the Claimant, throughout the investigation/disciplinary process, refused to reactivate her account.

During the investigation, the Respondent relied upon its social media policy which stated “…this policy does not only apply when an employee is at work, but at all times when a connection to the Trust has been made.”

Furthermore, the policy stated that social media must not be used in a way which is unlawful or grossly offensive. There was also reference to the Equality, Diversity and Inclusion policy of the Respondent which stated that acts of discrimination will result in disciplinary action up to or including dismissal. The Claimant’s actions were regarded as ‘serious breaches’ of these policies.

The Tribunal found that the dismissal was fair under the 1996 Order. They stated the Claimant’s act was reckless and it brought the Respondent into serious disrepute. Accordingly, the Claimant’s case was dismissed.

Practical Guidance for Employers:

This case aligns well with the case of McDade v Norman Emerson seen recently in the Tribunal. In this case, the Claimant had liked and shared the video whereas in the McDade case it related to the making of the video.  Here, the Respondent was clear in their approach by relying upon the Equality, Diversity and Inclusion policy and the Social Media policy to base their actions. This demonstrates the importance of such policies even in cases which may seem to be particularly concerning when looking at the content.