News & Views

Facebook fail: employee dismissed for online sexual harassment

BY John Wilson
Employment law
BG Purple

The last few years have seen an explosive rise in social media, and those dealing with employment law issues will know that online behaviour is increasingly becoming a headache for employers.

The good news is that Tribunals are delivering an emerging body of case law that gives employers guidance on how to deal with online issues. The case of Teggart v. TeleTech is one such example.  

Daniel Teggart was sacked from his job as a customer service representative in a Belfast call centre after his bosses discovered obscene posts on his Facebook page concerning a female co-worker. The decision was taken on the grounds of sexual harassment and that Mr Teggart’s actions had brought the company into disrepute because he mentioned his employers in one of the posts. 

Mr Teggart took his case to an Employment Tribunal claiming that he had been unfairly dismissed. The Tribunal rejected the claim, finding that TeleTech had acted reasonably in dismissing the Claimant; but only on the grounds of sexual harassment. 

The Tribunal did not accept that Mr Teggart had brought the company into disrepute. Teletech’s policy required that the company be brought into “serious disrepute” for the act to be considered gross misconduct. The disciplinary panel had not considered “seriousness” in making their decision and there was little evidence to demonstrate this. 

The Tribunal also gave some useful guidance on whether an employer relying on Facebook content to dismiss would breach an individual’s right to privacy under Article 8 of the European Convention of Human Rights. The Tribunal found that the right had not been breached in this case, since Mr Teggart had abandoned his right to privacy by posting his comments in a public forum. 

This case outlines a number of key points for employers to consider when considering dismissal in similar circumstances. The first is that the main reason that Mr Teggart was dismissed was for sexual harassment; an age-old workplace complaint that happened to be carried out in a new way. This case demonstrates that employers should be confident in their ability to take action for this common form of misconduct, even when it manifests itself in a new form. 

The second key lesson for employers (and one that is a common thread running though other social media cases) is the importance of having a clear and well thought out social media policy in place. The employer failed to show that the act brought the company into “serious” disrepute; but had the policy been worded differently and it been well-implemented with training, the outcome may have been very different on this point. 

Finally, the Tribunal’s comments on the application of Article 8 to this type of claim will be welcomed by employers. This issue was also raised in Crisp v. Apple (see Dec 2011 LAWmail) where the argument that the employee had the right to consider Facebook posts “private” was also rejected. 

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