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20th April 2012

Employee Fairly Dismissed For Postings on Facebook

In the case of Teggart v TeleTech UK Limited, the Northern Ireland industrial tribunal recently held that an employee who posted obscene comments about a colleague on his Facebook page was fairly dismissed.  The case is yet another example of tribunals dealing with dismissals relating to the use of social media, which are becoming more and more common.  It is clear from such cases that the need for employers to have a social media policy is paramount – if you require such a policy, please contact your Lighthouse advisor.

In this case, the claimant (Mr Teggart) was employed as a customer service representative by TeleTech UK Limited (TeleTech) in its Belfast call centre. Mr Teggart posted an obscene comment about the promiscuity of a female colleague (known as “Ms. A”) on his Facebook page while at home. The comment mentioned TeleTech and was read by his Facebook friends, which included some work colleagues. Ms. A was excluded from the page, but heard about the comment and asked Mr Teggart’s girlfriend to have him remove it. This intervention offended Mr Teggart and he posted a further lewd comment about Ms. A on his Facebook page.

The Facebook comments were brought to the attention of TeleTech by a person who claimed to be a member of the public, but who was never subsequently interviewed. TeleTech’s service manager spoke to Ms. A, who was clearly distressed about the comments. However, no formal investigatory meeting was carried out and no statement was taken from Ms. A at that time. A meeting was held with Mr Teggart during which he admitted to being the author of the Facebook comments and he was subsequently suspended, pending investigation.

A disciplinary hearing then took place to discuss Mr Teggart’s alleged gross misconduct for harassment of a fellow employee and for bringing the company into disrepute by using its name in connection with his 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 and also bringing the company into “serious disrepute” could result in the immediate dismissal of the offender. Following subsequent investigatory meetings with Ms. A and another witness, the outcomes of which were not reported to Mr Teggart, TeleTech decided that the charge of gross misconduct was sustained and dismissed Mr Teggart.

Mr Teggart appealed against the decision. In particular, he argued that he had intended the comments to be a joke and that he regularly mocked people on his Facebook postings. He had not intended to harass anyone but to “generate a vulgar distaste” for Ms. A . Further, he contended that TeleTech had not followed a proper disciplinary process (in that it had investigated the complaint after, rather than before, the disciplinary meeting). In the course of the appeal meeting Mr Teggart was provided with statements from Ms. A and the other witness interviewed and given the opportunity to comment on them. Following further investigations, the appeal was dismissed and the finding of gross misconduct was upheld.

Mr Teggart complained to the Northern Ireland industrial tribunal that he had been unfairly dismissed.

The Northern Ireland industrial tribunal dismissed his claims and stated that the finding of harassment was a reasonable conclusion for the disciplinary panel to reach. The comments made on Mr Teggart’s Facebook page satisfied the definition of harassment in Teletech’s dignity at work policy.

However, the industrial tribunal stated that the decision to find Mr Teggart guilty of having brought the company into disrepute was “seriously flawed”. TeleTech’s policy referred to the company being brought into “serious” disrepute. The disciplinary panel had not dealt with the serious element of the charge at all. 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.

In any event, the tribunal was satisfied that the appeal panel would have upheld the dismissal on the harassment charge alone and that this was reasonable. Looked at cumulatively, the tribunal believed that the vulgarity of the comments, the intention to create a vulgar distaste for Ms. A, the further posting in retaliation for Ms. A’s intervention and the dissemination of the comments among fellow employees, put the sanction of dismissal within the band of reasonable responses.

This case highlights the fact that inappropriate or offensive comments using social media may justify dismissal for gross misconduct even when they are made in the employee’s own time.  It is also clear that employees will not be able to rely on the defence that they have a reasonable expectation of privacy in relation to comments made on Facebook, as although an individual’s Facebook page is only open to their “friends”, it is not completely private as comments can be copied and passed on to others.

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