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Are you prepared to be liable for your employee’s campaigning?

Employers need to be careful about campaigning that may occur by its employees leading up to the Constitutional referendum.

Some employers may wish to allow its employees to exercise their Freedom of Expression while other employers may not even realise that it is ongoing during working hours and/or via the employer’s technology or devices. Either way, consideration needs to be given to the following potential consequences for employers:

  1. Liability for discrimination and/or harassment of other employees;
  2. Added difficulty in ever disciplining the employees who campaigned;  
  3. Non-work related activity during working hours;
  4. Adverse reflection on the company’s brand.

The first and most important point is that employers need to ensure campaigners of both sides are treated exactly the same.     

The Employment Equality Act renders an employer liable for the acts of employees done in the course of employment, whether or not the acts are done with the employer’s knowledge or consent. This includes actions done in connection with their employment regardless of whether they are done outside of working hours. An employer, however, can avoid this liability by proving that it took reasonable steps to prevent the particular act of discrimination or type of act generally by way of policy and training to implement such policies. Therefore, it certainly would be a good investment of time for employers to introduce a policy that covers campaigning.

An employee who is dismissed wholly or mainly from his/her religious or political views is automatically deemed to be unfairly dismissed. This also includes where an employee resigns and claims constructive dismissal for the same reason. Therefore, employees who carry out in campaigning activities gain an extra protection in relation to any future, unrelated, disciplinary action, as the employee can claim that it all related back to the campaigning. This was seen in a very recent decision of the Labour Court (UDD1815) in which an employee who was dismissed from his role as a search unit officer was awarded €9,000 as the reasons given for his dismissal included “his passionate advocacy of an illegal drug and his declare position as a cannabis activist”.

If permitting campaigning, it should be restricted to breaks and after working hours, as otherwise, it may be very difficult to discipline an employee for other non-work related activities carried out during working hours.  

A further benefit of having a policy in place in relation to campaigning is to give the employer the right to prohibit any campaigning on a particular topic that it feels is too sensitive or vial for staff to be subjected to.

Employers should introduce a policy that only authorises campaigns that are conducted in a respectful and orderly manner, outside working times, in line with the social media and IT policies and subject to the disciplinary policy.

Any further queries, please contact:
Anne O’Connell
1-3 Burton Hall Road
Dublin 18

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