Teggart v TeleTech UK Limited NIIT
The Northern Ireland industrial tribunal in Teggart v TeleTech UK Limited NIIT 00704/11 held that the dismissal of an employee for posting obscene comments relating to the promiscuity of a female colleague on his Facebook page was reasonable and fair. The comments did not directly affect the employer's reputation but the harassment of a colleague, which this was, was serious enough to justify the dismissal on the basis of gross misconduct. Furthermore, having made his comments public, the employee had no reasonable expectation of privacy for the purposes of Article 8 of the European Convention on Human Rights (ECHR).
Mr Teggart, a customer service representative of TeleTech UK Limited posted an obscene comment about the promiscuity of a female colleague on his Facebook page through his home computer. The comment mentioned TeleTech and was read by his Facebook friends, which also included some work colleagues. An anonymous person reported the Facebook comments to TeleTech, Mr Teggart admitted to being the author of them and he was subsequently suspended, pending investigation.
Following a disciplinary hearing and then further investigatory meetings, TeleTech decided on gross misconduct and dismissed Mr Teggart, who then appealed the decision. On appeal, Mr Teggart argued that he had intended his comments to be a joke and contended that TeleTech had not followed a proper disciplinary process as they had, for all intents and purposes, investigated the complaint after, rather than before, the disciplinary hearing. Mr Teggart was subsequently given the opportunity to comment on statements from the female colleague and other witnesses interviewed and after further investigations, his appeal was dismissed.
Mr Teggart complained to the Northern Ireland industrial tribunal that he had been unfairly dismissed and his human rights under Articles 8, 9 and 10 of the ECHR had been violated. The tribunal considered both unfair dismissal and potential violation of rights under ECHR, through a comparison with other misconduct cases involving use of social media.
Mr Teggart’s claim was dismissed and the key elements of the tribunal’s decision are as follows:
- The disciplinary panel reasonably concluded the finding of harassment on the basis that the Facebook comments contravened with TeleTech’s dignity at work policy as they created a demeaning work environment.
- The cumulative impact of the obscene comments, the intention to create a humiliating work environment and the dissemination of the comments among fellow employees, led to the reason for dismissal being reasonable.
- Mr Teggart’s argument that his human rights had been violated as per Articles 8, 9 and 10 of the ECHR was unfounded. The comments on his Facebook page had vacated any right to his comments being ‘private’ as per Article 8. The "belief" referred to in Article 9 did not stretch to a belief about the promiscuity of another person. The right of freedom of expression set out in Article 10 is to be exercised responsibly and did not entitle Mr Teggart to make comments that damaged someone’s reputation.
- Due to the lack of evidence, it was "seriously flawed" for the employer to find Mr Teggart guilty of having brought the company into disrepute.
- TeleTech's investigation had faults as an initial statement was not taken from the victim before the disciplinary hearing and Mr Teggart was not able to comment on the outcome of the investigations which should not have taken place after the disciplinary hearing. It was held, however, that as the factual matters that gave rise to the charges against Mr Teggart were accepted by him, the investigation did not need to be as extensive or as detailed as would normally be expected. Besides, the deficiencies in the investigation were remedied at the appeal stage where Mr Teggart was able to comment prior to the decision being made.
It appears apparent that employees would struggle to claim for violation of their rights under the ECHR, in particular privacy under Article 8, as social media sites like Facebook are open to ‘friends’. The nature of comments on such sites are not therefore private and they can easily be copied and circulated to others.
This decision also highlights the point that offensive and inappropriate comments through the use of social media could justify dismissal for gross misconduct even if they are made out of work and in the employee's own time.