Another social media storm

Another case has come through the courts relating to inappropriate Facebook usage by an employee.  As you may recall we reported on the rise of dismissal cases relating to employees' use of Facebook and other social media a few months ago.

The recent case of Teggart v TeleTech UK Limited has held that, by posting obscene comments about a colleague on his Facebook page, an employee had harassed that colleague and was therefore fairly dismissed by his employer for gross misconduct.  Although this was a case in the Northern Ireland industrial tribunal, it is still very useful guidance for employers outside of that region and does raise a new issue in the legal world of social media related dismissals.

The Facts

While employed by TeleTech UK Limited (TeleTech), Mr Teggart posted two obscene comments about the promiscuity of a female colleague (X) on his Facebook page while at home. The comment mentioned TeleTech and was read by his Facebook friends, some of whom were colleagues.  X could not view the comments but heard of them.

TeleTech were informed of these comments by someone who claimed to be a member of the public and subsequently spoke with X who was distressed about the incident.  However, no formal investigatory meeting was carried out and no statement was taken from X at that time. A meeting was then held with Mr Teggart and he was suspended following an admission from him that he had made the comments.

TeleTech's disciplinary policy, code of conduct and dignity at work policies prohibited harassment and unwelcome sexual behaviour and specifically provided that such misconduct could lead to immediate dismissal.  TeleTech then investigated the allegations and decided that Mr Teggart had committed gross misconduct and dismissed him.  They also held that his actions had brought the company into disrepute.

A subsequent appeal by Mr Teggart was dismissed.

The Decision

In bringing his claim, Mr Teggart put forward the argument that his rights under Articles 8, 9 and 10 of the ECHR had been violated. (Article 8 of the European Convention on Human Rights (ECHR) provides the right to respect for private and family life; Article 9 provides the right to freedom of thought and to manifest one's beliefs; and Article 10 provides the right to freedom of expression.)

He also claimed unfair dismissal.

The Northern Ireland industrial tribunal dismissed his claims for the following reasons:

• The Facebook comments satisfied the definition of harassment in Teletech's dignity at work policy and harassment could occur  where comments were made to others and not only when comments were made directly to the individual.
• The sanction of dismissal was reasonable, taking into account, the vulgarity of the comments, the intention to create a “vulgar distaste” for X (as admitted by Mr Teggart); the posting of a second comment after X complained about the first and the broadcasting of the comments among colleagues.
• Although agreeing there were deficiencies in the investigation (i.e. an initial statement was not taken from X), it was held that these were cured at the appeal stage. In addition, Mr Teggart had also admitted posting the comments.
• ECHR Articles 8, 9 and 10 were not engaged:
• • by posting comments on Facebook Mr Teggart abandoned any right to consider his comments as being "private" (for the purposes of Article 8)
  • the concept of "belief" referred to in Article 9 did not extend to a belief about the promiscuity of another person; and
  • the right of freedom of expression (set out in Article 10) should be exercised responsibly and does not entitle someone to damage a person’s reputation or infringe their right not to suffer harassment.

However, the tribunal held that the decision by TeleTech to find Mr Teggart guilty of having brought the company into disrepute was "seriously flawed".  This was primarily because, in the absence of any statement from, or information about, the supposed member of the public who had reported the Facebook comments to TeleTech, there was little or no evidence that the company had been brought into disrepute. 

What does it mean for me? 

This is yet another case which highlights that inappropriate or offensive comments using social media may justify dismissal for gross misconduct.  This is the case regardless of whether they are made in the workplace or outside.

The case indicates that an employer can also dismiss an employee if the effects of such comments made on social media sites constitute harassment.  This is obviously fact sensitive and here, the specific nature of the comments about X was key.  It also therefore suggests similar handling by employers if the comments were clearly discriminatory, i.e. on the grounds of race.

This case does differ from those seen previously, however, on the basis that the tribunal did not agree these actions had brought his employer into serious disrepute. On that basis it makes it clear that, in taking forward an argument of reputation, an employer needs evidence on which to base such an assertion and that mere assumption is not enough.  This case can therefore be distinguished from the previous “Facebook” case of Preece v JD Wetherspoons plc where there was clear evidence that the company had been brought into disrepute by the fact that the comments made by the employee were brought to Wetherspoons attention when they were contacted by the daughter of the customer whom the employee had commented about.  She complained that offensive comments about her mother had been made "very public".

Despite the tribunal’s distain for TeleTech’s arguments in regard to reputation, they did make it clear that employees will find it difficult to establish that they have a reasonable expectation of privacy in relation to comments made on Facebook.  Although an individual's Facebook page is only open to "friends", it is not private as comments can be copied and passed on to others.