Employers potentially responsible for Facebook comments made by their staff

Employees should be wary about their use of social media sites such as Facebook, following a recent decision by a tribunal in Belfast, Northern Ireland.

Whilst this judgement is not binding on UK employment tribunals (as it was made by a Northern Ireland industrial tribunal) it is an interesting case and useful guidance for similar issues. There is an ever-increasing amount of case law which suggests that even if comments are made outside of working hours, they can be relied upon by employers as a reason to dismiss.

As of April 2012, Facebook is reported to have some 900 million users worldwide, and it will come as no surprise that many people use Facebook in a cathartic, stress-relieving and almost confessional-like manner, without giving too much thought to the public nature of their comments. After a bad day in the office, sat on the train on the way home, it is very easy to “vent spleen” on social media sites like Facebook and Twitter.

However, making comments that could be construed as derogatory about a colleague is not a shrewd move. If those comments would be considered as “bullying” if they were made in the office, an employer is bound to pay attention to them if they are made in public.

In the case of Teggart v TeleTech UK Limited, a company dismissed an employee for gross misconduct after he made offensive comments about a colleague on Facebook.

Mr Teggart posted an obscene comment on his Facebook status update about the promiscuity of a female co-worker. The comment was made from his home computer, in his own time. The update made reference to the employer, and was read by his Facebook friends but not the female colleague he was referring to. However, she heard about it and asked Mr Teggart’s girlfriend to get him to remove it (as only the original poster – or Facebook itself – can delete a status update).

Instead of deleting the comment, Mr Teggart added a second lewd comment about the same woman.

The incident was reported to the employer, who proceeded with a disciplinary hearing to discuss Mr Teggart’s alleged gross misconduct for sexual harassment of a colleague, and the employer took the decision to dismiss Mr Teggart on this basis, and also that he had brought the company into disrepute.

Mr Teggart claimed unfair dismissal, arguing that his comments were intended as a joke, that he regularly made fun of people on Facebook, and that he had not intended to harass anyone. He also argued his Human Rights had been violated because they were intended as “private” comments.

The industrial tribunal found that the Facebook posts did amount to sexual harassment, and that his rights under the Human Rights Act 1998 had not been interfered with. They found that when he put these comments onto his Facebook page, “he abandoned any right to consider his comments as private”.

However, the issue of “cyber-bullying” goes beyond the use of a Facebook update. Employees should also be wary of tweeting or texting, sending offensive emails or sharing someone else’s personal data without their permission.

Even if the employer has well-drafted HR policies in place about staff behaviour and acceptable conduct, they may still have to decide to what extent they interfere with their employees’ personal life, particularly outside of working hours.

There is an argument that if you are going to be bullied at work it is almost better to be cyber-bullied rather than via the traditional sniping, back-biting and rumour spreading. Why? Simply put, if the bullying is via text, email, Facebook or Twitter, it can be traced and potentially used as evidence.