Political Differences 

With the recent announcement of snap Assembly elections and a feast of political stories over recent months it is becoming increasingly difficult for employers to keep political discussion out of the workplace. With so many competing views in Northern Ireland employers should try to maintain a politically neutral environment for employees to ensure that views do not cause offence. This is not always possible however and where an employee expresses a political view Employers should be mindful that it is unlawful to discriminate against him/her as a result.

The recent Northern Ireland Tribunal Judgement Sarah McCrossan v Department for Social Development [2016] (NIIT 00062_15FET) highlights the difficulties employers face in taking action against employees in such circumstances.

The claimant Ms McCrossan, was employed in what was then the Department of Social Development (Department for Communities). In May 2015 an anonymous complaint was made to her employer about Facebook posts she had made on the day after the general election in which she referred to those who voted for the ‘Tory’ Party and the DUP as ‘self serving bastards’ and offered further opinions on welfare reform and universal credit. The complaint noted ‘Like many thousands of people in Northern Ireland I voted DUP and should not be labelled a bastard by a colleague as a result.’

Ms McCrossan was subsequently disciplined and received a formal written warning. It is significant in this case that the Claimant was not disciplined for making ‘disparaging comments about colleagues or customers’ but in the alternative for bringing the ‘NICS (Northern Ireland Civil Service) into disrepute by on-line behaviour’
and commenting ‘on controversial issues connected with the responsibility of your own minister’ which was expressly forbidden under the NICS Handbook.

It is notable that at this time the Minister who headed the Department of Social Development was a member of the DUP.

In its Judgement the Tribunal held that the claimant was subjected to detriment but the real issue was whether the decisions of the employer were taken based on the ‘political opinion’ of the claimant. In conclusion the tribunal found as follows;

‘We find on the evidence in this case, that in practice what mattered was that the comments (rather than the issues) were potentially controversial because they were at odds with the political opinions of the Minister’s Party’

The Tribunal’s judgement went on to state;

‘Causation, not motive, is the key question in this case for us. The cause of the detrimental treatment was managers' assessment of the comments as controversial because of a complaint by a complainant who held a political opinion contrary to the claimant's coupled with the fact that the political opinion expressed by the claimant was contrary to that held by the relevant Minister’s party at that time.’

In short the Tribunal formed the view that if the Claimant’s opinions had accorded with those of the Minister ‘she probably would not have been disciplined’. The claimant was, therefore, able to prove that the detriment suffered was on grounds of political opinion and the tribunal held she had suffered unlawful discrimination.

Interestingly the Tribunal rejected the Claimant’s argument that her Facebook post was private, noting that she had 738 friends at the time and there was no restriction on any one of those friends passing on her postings and comments. The Tribunal however was of the view that the Claimant’s rights to freedom of expression were engaged and that where ‘an employee is disciplined for expressing a political opinion in his or her free time, we should scrutinise very carefully the circumstances…’

This case should serve as a warning to employers to carefully consider their approach to political comments expressed by employees inside and outside of the workplace. We recommend that employers implement clear equal opportunities and social media policies and that they communicate these to employees. It is also essential that Employers do not operate such policies in an inconsistent or discriminatory way.

With inevitable further political debate between now and March 2017 we recommend that you take specific legal advice before seeking to take action against employees for political opinions expressed.