Bridging the gap between social media misconduct and the workplace

As the influence of social media becomes ever more prevalent, the distinction between an individual’s personal online presence and their employment is becoming harder to maintain.

The recent decision of Northern Ireland’s Industrial Tribunal in the case of McDade v Norman Emerson Group Limited serves as a timely reminder of the risks posed by social media and an employer’s right to take disciplinary action over misconduct which took place on social media.

The facts

The Claimant had been a HGV Driver at Norman Emerson Group Limited (“the Respondent”) for eight years. In his own time, the Claimant attended a parade to commemorate the centenary of Northern Ireland’s establishment and he subsequently attended an Orange Hall where the celebrations continued. From inside the Orange Hall, the Claimant made a live video on his personal Facebook account. The Claimant’s Facebook profile listed the Respondent as his employer.

The live video depicted a group of fellow attendees singing a deeply offensive song which mocked the death of Michaela McAreavey.

The live video promptly “went viral”, sparking widespread condemnation from all political corners of Northern Ireland and from multiple prominent media commentators. The Respondent also received several complaints about the video from customers and employees.

Following a disciplinary investigation and hearing, the Claimant was dismissed for gross misconduct.

The Claimant subsequently pursued an unfair dismissal claim. The Claimant himself was not alleged to have engaged in the song; he argued that the actions of the other attendees were not foreseeable and that it had been unfair to hold him accountable for their abhorrent behaviour. The Tribunal dismissed the claim in emphatic terms.

Analysis

The Claimant’s prospects of success were not helped by the myriad inconsistencies in his evidence and the fact that his claim was, in the words of the Tribunal, “always misconceived and without merit”. Nevertheless, various aspects of the judgment act as helpful guidance to employers handling social media related conduct matters.

When dismissing the Claimant, the Respondent concluded that his video had clearly focused on those individuals engaged in the offensive song and that, in any event, it had been reckless of the Claimant to have live-streamed from a hall which was full of individuals who were under the influence of alcohol and who were engaged in boisterous activity. Interestingly, the Tribunal agreed that even if the Claimant had on balance been guilty of mere recklessness this would still have entitled the Respondent to summarily dismiss him. This should sound a note of caution to employees as it demonstrates that an individual can be subject to disciplinary action for broadcasting the inappropriate behaviour of others, even where they are not an active participant in such behaviour. However, the ability for employers to rely on this reasoning in other cases will be highly fact dependent.

In dismissing the Claimant, the Respondent relied in part on the reputational damage to its business which flowed from the Claimant’s video. This is all too often a pitfall of employers when grappling with disciplinary matters linked to social media. If a charge of reputational damage Is levelled against an employee, a Tribunal will normally expect credible evidence demonstrating the negative effect of an employee’s misconduct on the reputation of their employer. Such evidence is not always straightforward to obtain.

It is clear from the judgment that the Tribunal found the following factors to be relevant when assessing the reputational impact of the Claimant’s actions:

• The Claimant was a direct point of contact with the Respondent’s customers in the course of his role and was therefore one of the public faces of his employer;
• The Respondent prides itself on the cross-community scope of its operations and employs a mixed workforce. The behaviour in the Claimant’s live-stream was fundamentally contrary to these values;
• The Claimant’s Facebook profile clearly named the Respondent as his employer, thus establishing a plain link between his personal social media account and his employer; and
• The Claimant’s live video garnered widespread attention and had been roundly condemned by multiple prominent individuals such as the Justice Secretary, the Secretary of State for Northern Ireland and the heads of major political parties in Northern Ireland. The Respondent’s social media accounts faced a barrage of negative comments linked to the incident and the Respondent received multiple queries from customers about the incident.

Whilst an employer’s evidence of reputational damage does not necessarily need to be as stark as it was in this case, it is inevitably more advantageous to be able to rely on tangible examples of reputational damage rather than a mere “potential for reputational damage”.

A more general learning point can also be gleaned about the benefit of an organisation having clearly defined values – if an organisation has these, it becomes much easier to identify and demonstrate any misalignment between such values and an employee’s conduct on social media, and to take appropriate action on that basis.

It is important to highlight also that a sound disciplinary procedure forms the bedrock of any fair dismissal for misconduct and it is important to maintain compliance even in cases where the alleged misconduct is seemingly obvious.