Is summary dismissal for a social media post justifiable?

Last updated: November 13th, 2023

First published: November 13th 2023
Last updated: November 13th 2023

The outbreak of serious violence in the Middle East led to the recent high-profile dismissal of an Irish woman employed by an Israeli software company.

The employee posted critical views of Israel’s response to the Hamas attacks on her social media page and described Israel as a “terrorist state”.

The post led to significant unrest inside the Israeli company and ultimately management decided to summarily dismiss the employee.

The dismissal raises questions around the legal position of employers who opt to terminate an employee’s contract of employment for expressing their political beliefs on their personal social media accounts.

Freedom of expression v right to protect commercial interests

Employees have a right to express their political opinions but employers also have a right to take measures to prevent harm to their business.

It may be reasonable for an employee to be disciplined or even dismissed for social media posts that they make on their own private accounts if it brings the employer’s good name into disrepute. To guard against this risk, it’s important that employers have clear social media policies in place outlining the circumstances in which disciplinary action may be taken.

This often comes as a surprise to many employees who think what they post on their private social media accounts is of no concern to their employer.

Is summary dismissal an appropriate response?

If employers are concerned that political statements posted on an employee’s social media profile may be harmful to their reputation, they should not make any kneejerk reactions and remember the employee’s right to free expression which includes their political views.

Employers should clearly set out the type of social media activity that would be considered employee misconduct in the Employee Handbook and stick to the procedures set out in their disciplinary and grievance policy.

Employees have strong legal rights under a range of Irish employment laws. The key obligation for employers is to give employees every chance to state their case in response to an allegation that they have breached the terms of their contract.

And while it is open to employers to summarily dismiss employees who are guilty of gross misconduct, this option applies only to cases of very serious misbehaviour of such a kind that no reasonable employer could continue the relationship for a minute longer.

The lawmakers envisaged scenarios involving serious issues like violent assault or theft when it legislated for summary dismissals. Whether an employer would be entitled to summarily dismiss an employee for expressing political opinions on social media is likely to be arguable rather than a straightforward case of gross misconduct warranting summary dismissal.

Unfair dismissal claims against employers who fail to follow their own procedures

One of the most common reasons for unfair dismissal claims is a failure by the employer to adhere to the rules of their own disciplinary policy.

If you believe an employee has breached their obligations around social media use, ensure that you follow your procedures and apply a disciplinary sanction that is proportionate to the offence.

As discussed above, summary dismissal will only be appropriate for certain cases of gross misconduct.

Expert HR guidance for disciplinary procedures

If you need to manage a case of employee misconduct, you need to ensure you respect the employee’s rights.

Employees have a range of rights under Irish employment law and employers very often trip themselves up by failing to comply with the principles of natural justice and fair procedures.

So if you need to take disciplinary action against an employee for misconduct, call us today on 01 668 0350 for a free advice call with one of our HR experts.

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