A US-based employee was recently dismissed by her employer after a photo of her making a “middle finger” gesture at US President Donald Trump’s cavalcade went viral. She then used the photo on her Twitter and Facebook profile. Unfortunately for her, she was employed by a federal contractor and, some days later, it dismissed her after the photograph received widespread publicity.
It appears that her employer justified its dismissal on the grounds of a breach of its social media policy rather than the act itself, which is an entirely different matter. Its believed that the employer argued that the alleged breach of its social media policy could damage its position as a US government contractor.
So how would such a situation be dealt with under Irish employment law?
There is a significant amount of employment related social media case law in Ireland. The majority of these reported cases are unfair dismissal claims due to an employee’s alleged misuse of social media. A common theme is derogatory social media comments by the dismissed employee about management or fellow employees. A number of such dismissals in Ireland have been upheld and the WRC is willing to accept the notion that social media activity can, in principle, justify dismissal.
The US based employee in the President Trump gesture case subsequently made a number of points in her defence which would be very relevant in an employment law context in Ireland. She indicated that the gesture was a spur of the moment act and a gut reaction to his policies. She also pointed out that the activity occurred in her private time, was posted on her private social media pages and that her employer was not mentioned by her. Nevertheless, her employer presumably felt it had been brought into disrepute. All these factors are issues that an Irish employer would have to take into account in the event of any such situation arising here.
Ultimately, an employer in Ireland should consider the following factors in contemplating a disciplinary process for any employee alleged of social media misconduct:
- Does it have a Social Media policy that has been circulated to employees?
- Does that policy clearly identify the employer’s expectations on what constitutes misconduct?
- Was the activity by the particular employee private or is in the public domain?
- What is the actual impact on the employer? Is there really damage to its reputation or brand?
- Does the employer owe a duty to other employees as a result of the post e.g. is there harassment of other employees?
Of course, most employees in the US are employed on an “at will” basis which makes it far easier in most cases for the employer to dismiss compared to Ireland where the requirement to apply fair procedures and proportionality is very different.
Different jurisdictions and laws aside, the story is yet another reminder that the line between private life and work can be a blurry one and also that, in a social media world, it can be hard to keep private acts truly private.
Author: Barry Walsh