Teggart v TeleTech UK Ltd NIIT/704/11
Date added: 26 April 2012
unfair dismissal | gross misconduct | human rights | social media | Facebook
A Northern Ireland industrial tribunal has provided a useful example for employers of circumstances in which it can be fair to dismiss an employee for offensive comments made about a work colleague on Facebook.
The dismissal of an employee who makes offensive comments on social media about a colleague or comments that make reference to the employer may be within the range of reasonable responses.
However, an employer should consider any case like this on an individual basis, for example taking into account whether or not it was a one-off incident that the employee took steps to rectify immediately; the real likelihood of the employer being brought into disrepute; and the employee's knowledge of the rules. In some cases, a warning may be appropriate for a first offence.
An employee who has made offensive comments publicly on social media cannot use the argument that his or her privacy has been violated by the employer. Once an employee posts something publicly on social media, it ceases to be private.
Mr Teggart worked for TeleTech UK Ltd, which provides call-centre services for a number of clients. Mr Teggart's "friends" on Facebook included some work colleagues. While on his computer at home, Mr Teggart posted a message on his Facebook page about A, a female employee at TeleTech, that said: "Quick question who in TeleTech has [A] not tried to fuck? She does get around!" A number of people posted comments in response to this message.
A, who was known to Mr Teggart but was not a friend, was told about the comments by a work colleague. She spoke to Mr Teggart's then girlfriend to ask that the comments be removed. In response to this request, Mr Teggart posted another comment on Facebook that said: "[A] can go and suck donkey dick … LOL." Again, a number of individuals made comments.
Mr Spence, who appears to have known both Mr Teggart and A but was not, apparently, an employee at TeleTech, emailed the company the comments and suggested that they were "in breach of company policy". Mr Riddiough, the service delivery manager, spoke to A, who said that she was upset, physically distressed and tearful. Mr Riddiough did not, however, conduct a formal investigatory meeting with A, record what she had said or obtain a statement from her.
At an investigatory meeting, Mr Teggart, who accepted he was the author of the comments on Facebook, was suspended. Mr Teggart was invited to a disciplinary hearing to take place a few days later, with the invitation letter accusing him of gross misconduct on the basis that:
- he had "made inappropriate comments on Facebook on multiple occasions in relation to fellow employee [A] which the company may consider to constitute bullying and harassment"; and
- his "use of TeleTech's name in association with these comments within a social media forum may bring the company into disrepute".
On receiving the disciplinary letter, Mr Teggart commented on Facebook that, while he was not going to apologise to A, "[his] intention was not to upset [her] just take the piss a bit but seems as if [she] may have taken it a bit to [sic] seriously so [he'd] knock it on the head".
At the disciplinary hearing, Mr Teggart's arguments in his defence included that:
- he had not intended to offend A;
- he was entitled to make any comments that he wanted on his personal Facebook profile;
- the reference to "TeleTech" was an abbreviation for telecommunications or technical and not a reference to the company;
- he considered the matter to be "fun or a joke"; and
- he was under the influence of alcohol when he posted the Facebook comments.
The company dismissed Mr Teggart for gross misconduct on the basis that "he [had] made multiple postings on a social media site regarding a fellow employee, one of which made reference to TeleTech". The company stressed that it considered that Mr Teggart had harassed A and, in mentioning TeleTech, had brought the company into disrepute. This was contrary to the company's disciplinary policy, which lists "bringing the company into serious disrepute" as an example of gross misconduct.
On appeal, Mr Teggart was critical of the company's investigation. He argued that the company's code of conduct did not cover action in employees' personal life or personal use of the internet. Mr Teggart pointed out that expressing his personal opinions, not made on behalf of the company or using its equipment, had been inappropriately brought into the workplace by another person. Mr Teggart also argued that TeleTech had violated his human rights, namely the rights to respect for his private life and freedom of expression, and the right to manifest his beliefs. Mr Teggart's appeal was unsuccessful and he claimed unfair dismissal.
The industrial tribunal accepted that there were problems with the investigation stage, but went on to say that, where the factual matters that give rise to a charge are accepted by the person charged, usually the investigation need not be as extensive or detailed as would normally be expected.
The industrial tribunal considered the company's stated reasons for dismissal - that Mr Teggart had brought the company into disrepute and he had harassed A - separately.
In relation to bringing the company into disrepute, the tribunal found the disciplinary panel's approach to be seriously flawed. While it was reasonable for the panel to be unconvinced that Mr Teggart was using "TeleTech" as an abbreviation for telecommunications or technical, it had not considered whether or not the company had been brought into "serious" disrepute, which is the wording used in its disciplinary policy. The tribunal also expressed concerns that the company had failed to obtain evidence from Mr Spence, who had first alerted it to Mr Teggart's Facebook comments. There appears to have been a suspicion that he was a member of the company’s staff masquerading as an external complainant, or could have had a close connection with someone within the company.
In relation to the harassment of A, the tribunal found that the disciplinary panel's conclusion that Mr Teggart had harassed A was reasonable. Mr Teggart's unwanted Facebook comments clearly violated A's dignity and were capable of creating a degrading and humiliating environment. The company had evidence that A was upset about these comments and did not want to come into work. The tribunal also found that harassment can be caused through comments made to others and not to the victim of the harassment. Mr Teggart's comments were sent to a number of other employees within the workplace and were known about on the day that they were placed on Mr Teggart's Facebook page.
The industrial tribunal concluded that the company had not violated Mr Teggart's human rights. When he made the comments public on Facebook, he abandoned any right to have his comments treated as private and he could not seek to rely on his rights to respect for his private life (under art.8 of the European Convention on Human Rights). Further, the tribunal held that an individual's freedom to manifest his or her beliefs under art.9 does not extend to a comment about the promiscuity of another person. Article 9 is intended to refer to "a philosophy, set of values, principles, or mores" guiding an individual's conduct or behaviour. The right to freedom of expression, set out in art.10, brings with it the responsibility to exercise that right in a way that is necessary for the protection of the reputation and rights of others. It did not entitle Mr Teggart to make comments that damaged the reputation or infringed the rights of A.
The tribunal dismissed Mr Teggart's claim for unfair dismissal.
- Whitham v Club 24 Ltd t/a Ventura ET/1810462/10 An increasing number of tribunal cases involve employees making work-related comments on Facebook. This case shows that derogatory comments will by no means always justify dismissal.
- Crisp v Apple Retail (UK) Ltd ET/1500258/11 In this case, one of the world’s most prominent consumer technology companies, Apple, used its policies and procedures to dismiss fairly an employee who had made several Facebook posts that it considered could damage its reputation.
- Gosden v Lifeline Project Ltd ET/2802731/09 This employment tribunal decision shows that an employee's "private" actions outside the workplace can easily spill over to become misconduct that justifies disciplinary action.