Niall McMullan, Associate Partners, considers the Fair Employment Tribunal's ruling that a Civil Servant “suffered unlawful discrimination on the grounds of her political opinion and is entitled to compensation for injury to feelings” following a post she placed on her own Facebook page expressing her personal views on Welfare Reform and Universal Credit following the elections which took place on 5th May 2015.
In the case of Sarah McCrossan v Department for Social Development, Ms McCrossan, employed by the Department for Social Development was disciplined after her employer received an anonymous complaint regarding her Facebook post.
The disciplinary hearing took place on 16th June 2015 and, as a result, Ms McCrossan received a one year formal written warning despite the fact that her Facebook page did not indicate she was a Civil Servant or that she worked for the Department for Social Development.
Subsequently, Ms McCrossan appealed the disciplinary decision and an appeal hearing took place on 25th August 2015 wherein the same individual who decided that, following investigation, the incident warranted disciplinary action, also dealt with the appeal.
With regards to this, the FET stated “the focus of concern was not on NICS nor the Department but, rather, on the difference between the political views held by the Claimant on the one hand and the Minister and the Complainant on the other”.
The FET applied the “Reason why” test in this case and found that the reasons for the Claimant’s dismissal were:
The FET also found that “if the Minister had been from another party with views on these topics which aligned with the Claimant’s then she would not have been disciplined”.
As the delivery of the anonymous letter was by courier, there was no realistic way of identifying the complainant. With regards to this, the FET highlighted that the fact this complaint was pursued so vigorously by the Respondent’s managers, whom the FET did not find as credible witnesses, reflected their view that the political opinion of Ms McCrossan expressed in her Facebook post differed from those held by the complainant and the Minister.
The FET concluded that the “principal reason for instituting the disciplinary process and imposing and confirming the disciplinary penalty was therefore grounded on the divergence between the Claimant’s political opinion and that of the complainant and the relevant Minister”.
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