We are now seeing a steady stream of cases concerning employees’ use of social media both in and out of the work environment. The Northern Ireland Industrial Tribunal (the tribunal) has held that an employee who posted obscene comments about a colleague’s promiscuity on his Facebook page was fairly dismissed. …………
The employee concerned admitted to having posted the comments about his colleague. He stated that he had not intended to harass anyone but to “generate a vulgar distaste” for the colleague. He was dismissed for gross misconduct having brought the employer into disrepute and harassed the colleague. The employee appealed the dismissal and his appeal was dismissed by the employer.
He went on to complain to the tribunal that he had been unfairly dismissed and that his rights under the European Convention of Human Rights in particular, the right to respect for private and family life, the right to freedom of thought and to manifest one’s beliefs and the right to freedom of expression had been violated.
The employee’s claims were dismissed on the basis that the comments on the employee’s Facebook page satisfied the employer’s definition of harassment within its own dignity at work policy. It was noted that harassment can occur where comments were made to others and not only when comments were made directly to the particular victim.
The tribunal did not however believe that the employer had reasonable belief that the employee’s comments had brought the employer into disrepute. That said, the tribunal was satisfied that the appeal panel would have upheld the dismissal on the harassment charge alone and that this would have been a reasonable response given the employee’s intention to create a vulgar distaste for his colleague.
The tribunal also held that in making the comments about his colleague on Facebook, he had relinquished his right to privacy in relation to the comments that he was making. The tribunal also commented that “belief” did not extend to a belief about promiscuity of another person and the right to freedom of expression must be exercised reasonably which in this case, it was not.
Although this is an Irish case, the principles will no doubt be considered in English social media related employment cases going forward. It is a stark reminder that social media activity out of working hours even when it does not affect the employer’s reputation may justify dismissal for gross misconduct.
Advice for Employers
Although this case represents a victory for employers, it does not remove the requirement, even in what appears to be clear cut cases of misconduct/gross misconduct, for an employer to establish that at the time of dismissal:
- it believed the employee to be guilty of misconduct;
- it has reasonable grounds for believing that the employee was guilty of that misconduct; and
- at the time it held that belief, it had carried out as much investigation as was reasonable.
Case: Teggert v TeleTech UK Limited Northern Ireland Industrial Tribunal 007904/11
If you would like any further advice on handling disciplinary issues, please contact Rachael Jessop using the contact information below.
Rachael Jessop, Solicitor
+ 44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.