Barry Crushell: Social media and Irish employment law
Reading time: 12 minutes
Barry Crushell
Barry Crushell considers the recent case of an employee dismissed by their employer over a social media post.
As of 2023, it is estimated that 4.89 billion people worldwide use social media. Statistics show that on average, internet users spend 151 minutes a day on social networks. Currently, TikTok is the fastest-growing social network. Between 2020 and 2022 the platform experienced a 100 per cent user growth rate. According to an article in The Irish Times, which was published on 18 June 2022, the average Irish home now has access to eight smart devices.
Social media has a plethora of benefits. However, it also has its dangers, which sometimes seep into the workplace. As was said by Fox Williams: “In the social media age, all staff, from senior partners to junior employees, now wield the power to destroy the business for which they work by their words or actions online, whether or not they expressly advertise their affiliation with the firm online.”
The recent Workplace Relations Commission (WRC) case of Irene Glynn v Carlow Dental Centre (ADJ-00043734) serves as a useful reference point for both employers and employees, as to how online conduct may be regulated and addressed within the workplace.
This particular case addresses the issues of hate speech, social media and gross misconduct, which may become more relevant for Irish employers, given the impending introduction of hate-speech legislation in Ireland in the form of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022.
Background
Irene Glynn was alleged to have made controversial remarks from her own social media account, which were brought to the attention of Carlow Dental Centre, who decided to dismiss her. Ultimately, the WRC found in favour of the employee, finding that the failure of the employer to have adequate protocols and procedures in place was a fundamental flaw in the disciplinary process.
On Friday 6 January 2023, the employer received a message to its Facebook page from a member of the public which read: “Hello just so you know memebers [sic] of your staff have very extreme views when it comes to refugees coming into Ireland”. It included a screenshot of a comment made on a Facebook site called “Irish Supporters of Ukraine” which read: “Ireland is on its knees, Irish working people can’t afford heating or food yet refugees think it’s a free for all, stay fight for your country our grand parents fought against the English do the same”.
The employee was dismissed without notice on 9 January 2023, after receiving a text message from a management member requesting her to remove a comment she had posted on a Facebook page. The employee claimed she was on sick leave and that her partner had her broken phone. She was due to return to work the following day but received an email stating she had been dismissed for gross misconduct.
The employer argued that a member of the public, not a patient, was triggered to check the employee’s private Facebook page, leading to the employee’s employment information and business page. The employer argued that the line between private and professional had been crossed and did not want to risk any negative associations with the employer’s business. The employer is a multicultural employer and has zero tolerance towards hate speech, racial remarks, or anything that could cause incitement towards minority groups in Ireland.
On 9 January 2023, a meeting was held between the business owners and a decision was made to dismiss the employee on the grounds of “serious and gross misconduct”. The employer deemed the employee’s posting on the Irish Supporters of Ukraine Facebook page as hate speech under section 2(1) of the Prohibition of Incitement to Hatred Act 1989.
Legislation and case law
The Unfair Dismissal Acts 1977-2015 defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.
Section 6(1) of the Acts provides:
“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
Section 6(4) of the Acts provides:
“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (b) the conduct of the employee …”
Section 6(6) of the Acts provides:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”
In Glover v. B.L.N. Ltd. [1973] I.R. 388 it was held that:
“[i]t is impossible to define the misconduct which justifies immediate dismissal… There is no fixed rule of law defining the degree of misconduct which justify dismissal… What is or is not misconduct must be decided in each case without the assistance of a definition or a general rule. Similarly, all that one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate. And the standards to be applied in deciding the matter are those of men and not of angels” (per Kenny J at page 405).
In Frizelle v New Ross Credit Union [1997] IEHC 137, Flood J stated that in cases of misconduct:
“the actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee”.
In Governor and Company of Bank of Ireland v James Reilly [2015] IEHC 241, Noonan J held that if a company has a zero-tolerance approach to certain conduct, “its employees were entitled to some notice of this policy shift” (at [55]).
The adjudication officer cited a number of Irish and UK cases which have considered the dismissal of an employee for posting on social media platforms contentious or offensive material relating to their employer, colleagues or customers, and also postings unrelated to the employee’s employment (for example: Emma Kiernan v A Wear Limited, UD643/2007; O’Mahony v PJF Insurance, [2012] 23 E.L.R. 86; Crisp v Apple Retail (UK) Ltd, ET/1500 258/11); Preece v JD Wetherspoons Plc, ET/2104806/10; Teggart v TeleTech UK Ltd, NIIT/704/11; Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch); Trasler v B&Q Ltd; ET/1200504/2012; Game Retail Ltd v Laws UKEAT/0188/14; and Weeks v Everything Everywhere Ltd ET/2503016/2012).
The adjudication officer noted the examples of Irish cases and particularly UK cases, which established an employer’s right to take disciplinary action even where the post is on a private social media account. In the UK case of Game Retail Ltd the Employment Tribunal pointed out that cases are fact-sensitive, and that the usual “range of reasonable responses” test applies.
The importance of implementing a social media policy and impressing upon employees the importance of adhering to its terms was stressed in O’Leary v Eagle Star [2003] E.L.R. 223 where it was held that:
“[i]f an employee is to be dismissed for breaking the rules he should know or have an opportunity to know what they are. In a plethora of documents dealing with abuse of IT systems there was not a single document clearly outlining the consequences of departing from approved procedures.”
In Hennessy v Read & Write Shop Ltd (UD 192/1978) the Employment Appeals Tribunal (EAT) described ‘the test of reasonableness’ and applied it to: (i) the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the employee and (ii) the employer’s conclusion following such enquiry that the employee should be dismissed.
In Noritake (Ireland) Ltd v Kenna (UD88/1983) the EAT posed three questions: (i) did the company believe that the employee mis-conducted himself as alleged? If so, (ii) did the company have reasonable grounds to sustain that belief? If so (iii) was the penalty of dismissal proportionate to the alleged misconduct?
In Pacelli v Irish Distillers Ltd (UD571/2001) the EAT held that:
“[i]t is a prerequisite to any dismissal to conduct an investigation and such an investigation should have regard to all the facts, issues and circumstances surrounding a case warranting serious chastisement or reprimand, such as dismissal.”
In White v Cadbury (Ireland) Ltd (UD 44/79) a decision was taken to dismiss without an investigation. The EAT held:
“[t]he denial to the appellant of the opportunity to make or present his counter arguments prior to … [the] decision to dismiss him was, in our opinion, a breach of his fundamental right to be confronted with the evidence against him and to make counter-arguments, explanations, pleas etc as may be relevant. We are accordingly of the opinion that the denial of this fundamental right to the appellant had the inevitable result of rendering this dismissal an unfair dismissal …”
In Dunne v Harrington (UD166/1979) the EAT stipulated that an employer may investigate either:
“(a) personally in a fair and reasonable manner i.e. as fully as is reasonably possible, confronting the ‘suspected’ employee with ‘evidence’, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce ‘counter evidence’; or (b) he may rely on the reports of others”. However if the employer does the latter “… without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting ‘evidence’, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice viz that the other party (ie the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.”
In Gearon v Dunnes Stores Ltd (UD 367/88) the EAT held:
“[t]he right to defend herself and have her arguments and submissions listened to and evaluated by the employer in relation to the threat to her employment is a right of the claimant and is not the gift of the employer or this Tribunal … the right is a fundamental one under natural and constitutional justice, it is not open to this Tribunal to forgive its breach”.
In The State (Gleeson) v. Minister for Defence and Attorney General [1976] I.R. 280, it was held that:
“it would be an affront to justice if the law held that a decision with such drastic consequences for the man involved … could be made behind his back”.
Given the absence of a clear social media policy, investigation or disciplinary process, the adjudication officer decided that the employee was unfairly dismissed, and that the employer should pay to the employee compensation of €8,552.31.
Conclusion
The key criterion for in privacy and disciplinary cases is whether the individual had a ‘reasonable expectation of privacy’ when engaging in the relevant activity. If there is a reasonable expectation of privacy because, for instance, the employer has reassured the employee that they can use their social media for private purposes, and then disciplining them for their social media usage, would violate the employee’s reasonable expectation of privacy, and hence their right to private life.
The right to private life is a broad normative concept, which should protect individuals from employer domination for conduct within or outside the workplace and working time, in public and in private space. The interpretation of privacy as contextual integrity is understood in Ireland as a right that protects individuals’ private activities against submission and subordination to the employer, covers social media posts of employees.
No new laws have been created to deal with the issue of social media in the workplace, per se. Instead, Irish employment case law has evolved to reflect upon the use of social media by employees, when they have been sanctioned or dismissed, in accordance with previous case law, which will look at whether the behaviour was prohibited whether the requirements of the employer were sufficiently communicated, whether the employee had the right to defend themselves, and whether the employee was sanctioned or dismissed according to generally accepted principles of natural justice in the workplace.
What has changed, or should have changed, is that employers started to deal with this issue directly, by addressing what their expectations were of employees, when it came to their social media use.
Social media is simply a tool to help us communicate. Employees have always been sanctioned and regulated for the way in which they communicate with others. Unfortunately, now that communication is more public, accessible, and traceable. If an employer doesn’t have any social media policy, it is going to be harder for them to construe a private employee post as being an employer’s business.
- Barry Crushell is principal solicitor at employment law specialist firm Crushell & Co.
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