The Industrial Tribunal in Northern Ireland recently concluded that it was fair to dismiss an employee for offensive comments about a colleague that had been posted on Facebook. Whilst this decision is not binding on UK Tribunals, it does provide useful guidance in an area which is bound to resurface.
Mr Teggart was employed by TeleTech in its Belfast call centre. While at home Mr Teggart wrote a message on his Facebook page about a colleague which questioned how many people at the office she had slept with. The message received a number of comments from other colleagues.
The female in question found out about this comment and, through Mr Teggart’s girlfriend, requested that the comments be removed. Mr Teggart then posted a further message in a similar vein to the first.
After the employer had been made aware of the messages, a meeting was held with Mr Taggart. He was subsequently suspended and a disciplinary meeting arranged in accordance with ACAS guidelines.
Interestingly, Mr Teggart was dismissed for gross misconduct on two grounds; that his comments had amounted to the harassment of the female, and secondly that by using the company’s name in the comments he had brought the company into disrepute. This was contrary to TeleTech’s disciplinary policy which expressly included ‘bringing the company into serious disrepute’ as an example of gross misconduct.
Mr Teggart brought a claim for unfair dismissal and argued several grounds; that the comments were simply a joke and not intended as harassment, but more poignantly that his actions on his personal computer outside of work hours were not covered by the company’s code of conduct, and furthermore that TeleTech had violated his freedom of expression, right to private life and freedom of belief.
The Industrial Tribunal rejected the argument that the comments had brought the company into serious disrepute as there was little or no evidence of this claim. In practical terms it would be very difficult to evidence who had seen these comments and the effect, however, it remains an arguable case.
The Tribunal was satisfied that it was reasonable for the disciplinary panel to dismiss Mr Taggart on the grounds of harassment alone as the comments had violated the female's dignity and were capable of creating a degrading and humiliating environment as prohibited by section 26 of the Equality Act.
Regarding the human rights arguments, the Tribunal ruled that Article 8 was not engaged as the comments were made on a public forum, Mr Taggart’s opinion’s on the female's promiscuity did not constitute a ‘belief’ under Article 9, and that freedom of expression does not grant the right to harass others. His claim was therefore dismissed.
Whilst not binding, this case shows that comments made outside of work and on personal computers can and will be relied upon to constitute grounds for dismissal. Whether the dismissal is fair will largely turn on whether the definition of harassment as contained in the Equality Act is satisfied, and if it is it will be very difficult to rely on the freedom of expression.
Posted on Friday, 11th May 2012