Cases discussed:

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/

Christine:  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.

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