The employer was notified by a member of the public that the employee was posting extreme views regarding refugees in Ireland on Facebook.
The employee had been requested by her employer to remove the post from her social media account but failed to do so. The employee was dismissed without notice a number of days later for serious and gross misconduct. The employee claimed that she was not given an opportunity to defend herself and that she was not given notice of termination of her employment.
During the WRC hearing, the employee argued that she was not a member of a political group, that she was free to share her opinions, and that she entitled to the benefit of freedom of speech. The employer submitted to the WRC that the member of the public who had reported the comment was not a patient of the employer’s business and therefore the employee’s social media account led the member of the public to the employee’s employment information and consequently to the employer’s business page. The employer argued that the boundary between personal and professional had been crossed and that it did not want to risk any negative associations with the business. The employer further submitted to the WRC that it had a zero-tolerance approach towards hate speech, racial remarks or anything that could cause any incitement towards minority groups in Ireland. However, the employer did not have a dedicated social media policy which prohibited its employees from making comments or acting in any way which might damage the business interests or reputation.
The WRC cited various cases, from both the UK and Ireland, highlighting that employers have the right to discipline employees for contentious or offensive social media content, even on private accounts and that the range of reasonable responses test applies. The importance of a well-defined social media policy was emphasized to prevent ambiguity and to impress upon employees the importance of adhering to its terms, particularly given that the fact that the employer was aware of previously offensive material posted online by this employee.
The employee was successful in her claim for notice and unfair dismissal due to a lack of opportunity to defend her actions and she was awarded €10,564.62 by the WRC.
Key Action Points for Human Resources and In-house Counsel
The case is important reminder of the requirement to follow fair procedures prior to implementing a dismissal under Irish law.
More generally, employers should ensure they have a suitable social media policy in place to address an employee’s usage of a private social media account. In addition, and as this case confirms that employers do have a right to discipline employees for contentious or offensive content posted on private social media accounts, the policy should reserve the employer’s right to discipline employees in such circumstances.
*This article was first published in L&E Global