8/20/2019 Carol Sinnott Profile in Sunday Business Post

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You spend the evening tweeting,and the next thing you knowyour boss is on the phone. But

does your manager have a rightto censor your opinions, asksGareth Naughton

With abortion stilla hot topic and asame-sex mar-riage referen-dum expected

next year, politics will be gettingpersonal in the next 18 mo nths.

Te prevalence of social mediameans that we are now expressingour personal opinions in the mostpublic of forums, but should wereasonably expect that those viewsgo unnoticed by our employers?And do employers have a right tointercede if someone’s personalviews are likely to have an impacton their business?

Confusingly, the answer in bothcases is essentially “yes”.

Religious or political opinions areincluded in the Unfair DismissalsAct. Article 8 of the European Con-vention on Human Rights (ECHR)contains the right to respect forprivate and family life, home andcommunications, and Article 9gives a right to freedom of thought,conscience and religion, includingthe right to manifest one’s religiousbeliefs either in public or private.

Article 14 of the ECHR prohibitsdiscrimination against religious,political or other opinions.

Te same principles should ap-ply to employees expressing theirviews on social media, but thisis also balanced by any potentialdamage those views may cause tothe company brand, according toCarol Sinnott of Sinnott Solicitors.

“When it comes to expressingpersonal views and opinions onsocial media sites such as Face-book, witter and LinkedIn, andwhen deciding whether an em-

ployer could dismiss an employeefor placing their strong views onsocial media sites, it is a relativelynew area.

“However, the same principleswhich exist in the context of anemployer/employee relationshipshould still hold good. ake, for ex-ample, an employee who wishesto publicly express a view on anupcoming abortion or same sexmarriage referendum or otherpublic interest matter.

“Te test is really whether theoffence or act complained of eitherdamages the employer or the rep-utation or brand of the employer’sbusiness, or the legitimate aimsthat the employer’s organisation

wishes to promote or protect aspart of their business,” she said.

Sinnott cited the hypotheti-cal example of someone with aLinkedIn profile where they wereidentified as an employee of theEquality Authority.

“If that employee were to post apersonal view of a discriminatorynature based on religious beliefs,race, nationality or membershipof the ravelling community, thenof course, those comments wouldgo against the legitimate aims thatthe employer is trying to promoteand protect,” she said.

“Social media policies in theworkplace are gaining much moreattention, and the reality is thatcertain publicly posted commentscould be perceived to be the view ofyour employer or damaging to theemployer if your profile is connect-ed to the employer in some way.”

Tere is a misconception amongemployees that their social mediacommunication is purely personaland is, therefore, not their employ-er’s business.

“While employees may seenothing wrong with expressingpersonal opinions online, it couldpotentially pose a serious problemfor their employer if their reputa-tion is being damaged or if theylater become liable for the com-ments made by their employees,”she said.

PolicyAt the same time the onus will beon the employer to show that thecomments have had an impact ontheir ability to conduct business.

In a straightforward situationwhere the employee is not tweet-ing or posting on behalf of work,they are entitled to freedom ofexpression as long as they are notsaying anything illegal, accordingto Davnet O’Driscoll, associate atHayes Solicitors.

“An employer would look at thetweet or post, and they would needto look at their policy to see if theyhave one that restricts the use ofsocial media at work,” she said.

“Presumably in their private timethey will be able to use Facebookand voice their opinions, and if itdoesn’t identify their organisationand doesn’t criticise anything to dowith the company or their clients,

then it doesn’t have an impact.”She cited the case of an Aus-

tralian hairdresser who posted acomment on Facebook criticisingher pay including a copy of her payslip. Te hairdresser was dismissed,but when it went to a court, theyfound that, despite whatever pri-vacy settings were in place, she hadmade it a public matter.

“However, when they looked atit, they said they did not see thatthere was any damage to the or-ganisation because the hairdress-ing company could not prove thatany clients had seen it before it was

taken down, and they felt that thedismissal was not warranted. Tereshould be a demonstrable impact,”said O’Driscoll.

Te key here is that employersneed to have a clear, defined policyin place around the use of socialmedia and what is considered pub-lic and private.

“Te employer has to show thatthere is a policy in place dealingwith this specific issue. If an em-ployee tweets something unrelatedto work, not identifying themselvesin a professional capacity, then itshouldn’t have any impact on theirwork so the employer is not enti-tled to take action, whether theylike it or not.

 “Obviously, if someone wasemployed by the Family PlanningClinic and tweeted on pro-choice,that is something that would po-tentially come within the remit onthe type of employment they haveand related comment,” O’Driscollsaid.

Te policy should be explainedto employees and clarified so thatthey are absolutely certain aboutwhat is and is not permitted. Tisplaces employers on much stron-ger ground if an issue does arise.Still, they should tread carefully,according to Sinnott.

“Even where a clear policy doesnot exist, there may well exist aninherent right to dismiss an em-ployee depending on the behaviourcomplained of, where the employ-ee’s conduct impinges upon thework place or damages the rep-utation of the business,” she said.

“Each case will be judged on itsown facts whether or not there is apolicy in place. However, from anexamination of the recent case lawin this jurisdiction and in Europe,an employer would do well to re-member that, before imposing ablanket ban on employees’ rights to

express beliefs and opinions, em-ployers should consider whetherthere is objective and proportion-ate justification for curtailing anemployee’s right to express theirviews.”

 

DisreputeMany companies include this areain their conduct guidelines, andlurking in the background is aclause that many people – par-ticularly those working for multi-nationals – will have in their con-tracts around actions that bring the

company into disrepute.It is suitably broad enough to

cover a range of offences and,according to ommy Cummins,senior consultant in industrial re-lations with Adare HRM, managersare very aware of that.

“I cannot think of a case in Ire-land where that was used to firesomebody, but most managers thatI know would be very aware of thatclause and they would be astuteenough not to offer an opinion inpublic in relation something to dowith religion or politics,” he said.

“It would be rare for someonein a senior position to be on a pro-gramme and strongly advocate apolitical view, because it is likely

to get them into trouble.”While the law may offer some

protections, the reality is that em-ployees are constantly being madeaware through in-house cam-paigns and training initiatives thatif they are going to put something inthe public domain that may affectthe company, they have an obliga-tion to run that past whoever is incharge of public relations.

“If you are a face that is readilyassociated with your company oryour brand, you are probably goingto be in breach of some guidelines,”he said.

“Even if that is not the case andpeople don’t know you, but you areon television and making a pointfrom the audience; it could cer-tainly have implications when yougo back to the office the next day.”

Expressing controversial viewsmay not lead to outright dismiss-al, but it could have an impact oncareer progression.

“If you get 100 directors or seniormanagers into a room and you askthem to make a personal commenton a hot topic like abortion, I wouldbe very surprised if you got any ofthem to go on the public record.Tey know where their bread isbuttered and they are aware of con-duct guidelines,” said Cummins.

■  Patricia Fennessy hasbeen appointed marketing

manager with Sage Ireland.

Fennessy was formerly

EMEA programmes

marketing manager with

Webroot for nine months

and before that, marketing

manager with 123Send in

London for two years.

 

■  Beatrice Whelan isSage Ireland’s new digital

marketing specialist. She has

been the company’s social

media and content manager

for the past two-and-a-half

years. Before that, she was

a website developer with

Kildare Web Services for five

years.

 

■  Mary McNamee is also joining Sage Ireland in the

role of marketing campaign

manager. McNamee has been

marketing coordinator with

Cook Medical for the past six

years. She was also formerly

marketing and PR executive

with the Irish Greyhound

Board for 18 months.

■  Grace Egan is the newmarketing manager at

Commtech. She joins from

Hewlett-Packard, where she

worked in channel marketing

and communications for

four-and-a-half years. She

was also formerly area sales

manager at Dairygold for

four-and-a-half years.

Making a public stand, privately

Davnet O’Driscoll, associate at Hayes Solicitors Tony O'Shea

Carol Sinnott of

Sinnott & Company,

Rathmines

Picture: Feargal Ward

The Sunday Business PostSeptember 7, 2014

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PeopleProblemsTe many ways of working

Over the past ninemonths, this col-umn has featuredmany of the dif-ficulties that can

arise in the workplace. Of-ten, where these have beenpoorly managed, the matter ispassed on to one of the officialagencies tasked with resolvingworkplace disputes.

These include the:

■ Employment Appeals ri-bunal (EA)■  Rights Commissioner

■  Employment Equalityribunal■  Labour Relations Com-mission (LRC)■ Labour Court

■  National EmploymentRights Authority (Nera).

We have also seen civilcourt actions brought beforethe Circuit and High Courtsand, as it is, the system is acomplete maze resulting in

hearings being delayed for upto 18 months

Te system has developedover the past decade on apiecemeal basis, and often

in response to European di-rectives on equality, parentalleave, working time or healthand safety guidelines.

Te Workplace RelationsBill, published last month,has restructured the systemto include just two new em-ployment bodies.

Tese will be a new Work-place Relations Commission(WRC) and an expanded ver-sion of the Labour Court.

Te WRC will provide aninitial hearing body and therewill also be an appeals body

centred on the Labour Court.Te functions of the LRC,

NERA, the Equality ribunal,and the first-instance func-tions of the EA and the La-

bour Court will be transferredto the WRC.

Te WRC will be taskedwith adjudicating, or facili-tating, a resolution of all em-ployment disputes with theintention of eliminating theneed to take multiple claims toalternate workplace relationsbodies.

Te bill provides for threeservices for resolving disputesat the WRC. Disputing par-ties can avail of the servicesof a case resolution officer ora mediator, or they can instead

opt for a full hearing.Tis is an upgraded “infor-

mal” version of the existingrights commissioner’s service,which resolves many disputes

behind closed doors.Te Workplace Relations

Bill will enhance the powersof workplace inspectors, in-troducing two new servicesto help resolve and settledisputes without the needfor formal adjudication by athird party.

Te WRC will refer disputesto these two services in ap-propriate circumstances, butparticipation will not be oblig-atory. Both parties will havethe right to request that thematter instead be handled by

an adjudication officer.Te case resolution officer

will provide a phone-basedadvisory service to help em-ployers and employees to set-

tle disputes or advise on bestpractice.

Tis scheme has been pi-loted since May 2012 throughthe Early Resolution Service.

A mediation officer willhost a face-to-face media-tion service at the WRC to helpparties to reach a settlement.

Adjudication officers willalso hear complaints aboutbreaches of employmentlaw and will give a decisionon the matter. Complaintswill be heard in private, butdecisions will, in general, be

published.Existing rights commis-

sioners and equality officerswill transfer to the role of ad-judication officer, and further

appointments will be made.Existing Nera inspectors

will be transferred or ap-pointed to the WorkplaceRelations Commission andwill be granted new powers.

Tese will include the pow-er to issue fixed payment no-tice or on-the-spot fines toemployers of up to €2,000,where employee wage state-ments cannot be produced,employees have not receivedwritten statement of hourlypay rates for a pay referenceperiod, or the minister has not

been notified of proposed col-lective redundancies.

While most of the changesto the existing workplace re-lations system are welcome,

some are a cause for concern.All of the WRC hearings will

be held in private, unlike manycurrent EA hearings. Tis isunderstandable in a mediationsituation, but dilutes publicscrutiny and awareness by ef-fectively installing “black-outcurtains” at the WRC.

Replacing rights commis-sioners and employer/labourrepresentatives on hearingpanels may also be a backwardmove, as these people usuallybring the benefit of commonsense to legal proceedings.

 Gerald Flynn is an employment

specialist with Align ManagementSolutions, gflynn@alignmanage-ment.net 

Changes to workplace relations system on the way

Gerald Flynn