A recent decision of theNorthern Irelandindustrial tribunal provides further guidance for employers on the use of information from social media websites for the purposes of misconduct dismissals. The facts Mr Teggart was employed as a Customer Service Representative by TeleTech UK Limited at itsBelfastcall centre. He posted an obscene comment on his Facebook page from home about the promiscuity of a female colleague. The comment included reference to TeleTech and was read by Facebook friends including work colleagues but not the female colleague mentioned. The woman subsequently heard about it and told Mr Teggart’s girlfriend to ask him to remove it. This request offended Mr Teggart who then posted a further obscene comment about her on his Facebook page. The comments were brought to TeleTech’s attention by an unknown member of the public. TeleTech’s service manager spoke to the woman who was distressed about it. A meeting was held with Mr Teggart during which he admitted to making the comments. He was subsequently suspended and an investigation took place. A disciplinary hearing was then held to discuss Mr Teggart’s alleged gross misconduct for harassment of a fellow employee and bringing the company into disrepute. After further investigation TeleTech concluded that his conduct amounted to gross misconduct and he was dismissed. Mr Teggart appealed on the basis that his comments were meant to be a joke and that he regularly mocked people on Facebook. He had also not intended to harass anyone. He also complained that TeleTech had not followed a proper disciplinary procedure and that his human rights had been violated. TeleTech investigated the matter further and upheld the decision to dismiss. Mr Teggart brought a claim in theNorthern Irelandindustrial tribunal for unfair dismissal and for violation of his human rights under Article 8, 9 and 10 of the ECHR. The decision The tribunal dismissed his claim for unfair dismissal and also held that his rights under the various Articles of the European Convention on Human Rights were not engaged. The key points of the decision were as follows:
- The disciplinary panel’s findings of harassment were reasonable as Mr Teggart’s Facebook comments satisfied the definition of harassment in TeleTech’s dignity at work policy as they were unwanted, violated the woman’s dignity and created a degrading and humiliating environment. It also held that harassment could occur where comments were directed to others and did not have to be made directly to the particular victim.
- The decision to find Mr Teggart guilty of bringing the TeleTech into disrepute was “seriously flawed”. The disciplinary panel had not dealt with the serious element of this charge. The supposed member of the public had not been interviewed or given a statement and there was little or no evidence that TeleTech had been brought into disrepute.
- The tribunal was satisfied that the disciplinary appeal panel would have decided to dismiss for the harassment charge alone and that this would have been reasonable. It considered that the vulgarity of the comments, the intention to create vulgar distaste and retaliation through further Facebook postings placed the dismissal for harassment within the band of reasonable responses.
- Articles 8, 9 and 10 of the ECHR were not engaged. Mr Teggart abandoned any right to believe that his comments were “private” in Article 8 when he posted them on his Facebook pages, that “belief” referred to in Article 9 did not extend to a belief about the promiscuity of another person and the right to freedom of expression in Article 10 had to be exercised responsibly and did not allow Mr Teggart to make comments that damaged a person’s reputation or fettered the right not to suffer harassment.
In conclusion, whilst this judgement is only persuasive and not binding onUKemployment tribunals (as it was given in aNorthern Irelandtribunal) it is still useful guidance. It is a clear reflection also of emergingUKcase law on dismissals involving social media. It establishes that even if the comments are made outside of work and in the employee’s own time they can be relied upon by employers and used to fairly dismiss. It also makes clear that employees will struggle to argue that they have a reasonable expectation of privacy under Article 8 of the ECHR. Henry Doswell, Associate