Industrial Tribunal Judgment: Andrew McDade v Norman Emerson Group Limited

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Gateley Legal NI

On 2 June 2023, Mr McDade, an HGV driver with 8 years’ service, lost his unfair dismissal claim against his former employer, Norman Emerson Group Limited (NEG Limited). We consider the impact of the decision.

The facts

Mr McDade livestreamed a video on his Facebook account from Dundonald Orange Hall. The video included a 31 second clip which showed a group of individuals singing a sectarian song which mocked Michaela McAreavey, a young woman who had been murdered on her honeymoon. The video was left on Mr McDade’s Facebook account for some five or six days before he deactivated his account.

Mr McDade’s Facebook account clearly identified Mr McDade as an employee of the respondent company. The 31 second clip went viral and provoked strong condemnation, not just across Ireland, but worldwide.

NEG summarily dismissed Mr McDade for gross misconduct on 10 June 2022. At a disciplinary hearing, NEG took Mr McDade’s 8 years’ service into account and concluded that the following allegations against Mr McDade amounted to gross misconduct:

  • livestreaming a “vile and abhorrent video which mocked the murder of Michaela McAreavey”; and
  • his actions caused widespread offence and outrage and had damaged working relationships and the business interests of the Norman Emerson Group.

Mr McDade did not appeal against his dismissal.

Judgment – a fair dismissal

On 11 August 2022, Mr McDade lodged a claim in the Belfast Industrial Tribunal alleging that he had been unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996 (the ERO).

The case was heard by the President of the Belfast Tribunal, Judge Kelly, who rejected Mr McDade’s claim on 2 June 2023 and held that his dismissal was fair.

Furthermore, Judge Kelly commented in his judgment that: “this is a claim which was always misconceived and without merit”.

The nature of Mr McDade’s gross misconduct is particularly abhorrent. Mr McDade was a direct point of contact between NEG and its customers. NEG’s social media accounts were flooded with negative commentary and complaints from customers. Some customers stated that they would refuse to unload Mr McDade’s company vehicle if he had ever pulled into their yard again.

Mr McDade’s evidence at the Tribunal was “implausible and plainly not true” according to the judgment. He contradicted himself a number of times when cross-examined.

Key points

  1. Clear policies: This decision highlights how vital it is to have clear policies on the standards of behaviour required of employees outside of work and when interacting on social media. NEG had a company handbook that made it plain that such behaviour could be classed as gross misconduct. NEG also had a helpful social media and personal internet/ email usage policy. Specifically, the handbook stated that “Employees using email and the internet for personal/ private purposes even outside the workplace and/ or working hours must be mindful of the impact it can or could have on their work, relationships, the organisation and must not publicly identify themselves as working for the organisation.”
  2. Witness credibility: The Tribunal found Mr McDade to be an unreliable witness. It is important when preparing for any Tribunal hearing that your witnesses tell the truth under oath and that their evidence is consistent.
  3. Damage to reputation: Such significant damage to an employer’s reputation, as was the position in this case, is almost certainly going to result in a finding of gross misconduct. Therefore, make sure your disciplinary policy identifies what is considered as behaviour online which may be damaging to your business or organisation.
  4. Length of service matters: Always take an employee’s length of service into account even if a disciplinary decision relates to disturbing conduct by the employee.

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