Under Irish employment law, the position is that a dismissal by reason of a political opinion is automatically unfair
What are the considerations if a disciplinary sanction might be the consequence of this?
In truth, it can be difficult to get this right and employers can struggle with the challenge of striking the balance of maintaining a safe and dignified workplace for all employees without stifling an individual employee’s right to freedom of expression.
The balancing of rights
There are several rights and obligations which overlap when this issue arises for employers. Of course, employees have a right to privacy and a right to freedom of expression. In Ireland in particular, a range of employees’ rights are enshrined in the Irish Constitution – employees have a constitutional right to a good name, to earn a livelihood and to the application of fair procedures when faced with an allegation of misconduct.
By contrast, an employer also has an obligation to operate a workplace which is safe and dignified and where harassment and discrimination are not tolerated. An employer has a right to protect their brand and reputation and when comments are made which may negatively impact on the employer, a business will want to act fast and clarify their position.
What is a “controversial belief”?
The law in Ireland has a much narrower view of what is considered a “controversial belief” than in other countries so this can present a challenge where a business operates globally with different local considerations arising.
While it may be difficult to place strict parameters around what is and what is not “controversial” there are certain guardrails in place which employers should keep in mind when determining whether to initiate a disciplinary process.
Under Irish employment law, the position is that a dismissal by reason of a political opinion is automatically unfair. Less favourable treatment including dismissal in connection with a protected ground such as religion, sexual orientation and gender (which includes transgender) is prohibited.
There is no sword available to employees to express those belief
There is however very little caselaw in Ireland on what is a “political opinion”. There is no employment-related right to express so-called “controversial beliefs” in the workplace.
There is no sword available to employees to express those beliefs, rather there is the shield of certain discrete rights such as the right to redress – including reinstatement – for an unfair dismissal or a discrimination or victimisation claim linked to the expressing of such views.
How have the Irish courts struck the balance?
Recent case law highlights that certain factors should be considered before an employer decides to initiate the disciplinary policy in respect of the expression of “controversial beliefs”.
For example, how private or public were the comments? Is there a close connection to work? Does the incident impact colleagues, customers or the business’ reputation? What workplace policies are engaged?
Recent cases at the Workplace Relations Commission (WRC) have demonstrated the importance of fair procedures and proportionality. The WRC has accepted that “off-duty” posts, done on the employee’s own time, could in fact justify disciplinary action and there has been an acknowledgement that the freedom of expression enjoyed by employees is not absolute.
The Workplace Relations Commission
It is clear from the caselaw however that where an employer intends to initiate a disciplinary process in respect of alleged “controversial beliefs”, they should ensure that any disciplinary action is well considered and proportionate in nature.
In a number of cases, employers have been criticised for failing to have an adequate social media policy in place which mapped out the employer’s expectations in respect of employees’ online behaviour.
Key takeaways
Most employment disputes in relation to controversial beliefs in the workplace tend to turn on unfair dismissal principles such as fair procedures and proportionality and the balancing act between the European-based rights to freedom of speech versus the need to protect the rights and freedoms of others.
In many of these cases, an employer has failed to defend the fairness from a legal perspective of the decision to dismiss. These situations can be emotive and urgent in nature and as a result, regard for fair and thorough practices and procedures can be disregarded in the race to get the situation under control.
Reputational risk is of course important for employers but such considerations should not outweigh the importance of adhering to fair procedures when managing the expression of “controversial beliefs” in the workplace.
Karen Killalea is a solicitor and head of Employment at the Maples Group
Karen Killalea
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