A staff member has complained that a fellow employee has been spreading rumours about their sexuality on Facebook. The employee at the centre of the rumours is understandably distressed by the comments and has submitted a grievance complaining of bullying and harassment. However, I am worried that we won’t be able to take any action against the offending employee if the allegations are found to be true because the comments were made on their personal Facebook page and outside working hours. How do I handle it?


Amanda Magee writes:


With the increasing use of social media over the past few years, employers are more often finding themselves faced with online conduct by their employees that they perceive to be offensive or inappropriate. Not only this, but where the offending online conduct has been found to amount to bullying, harassment or discrimination, employers themselves have, in some cases, been found to be vicariously liable for their employees’ online actions.

Online bullying and harassment in the employment field is becoming an increasingly common occurrence, and one that the industrial tribunal here in Northern Ireland dealt with in the case of Teggart v Teletech UK Limited NIIT 00704/11.

Mr Teggart, who was employed by TeleTech in its Belfast call centre, posted an obscene comment about the promiscuity of a female colleague, A, on his Facebook page while at home. The comment mentioned TeleTech and was read by his Facebook friends, which included some work colleagues. A was excluded from the page, but she heard about the comment and asked Mr Teggart's girlfriend to have him remove it. This intervention apparently offended Mr Teggart and he posted a further lewd comment about A on his Facebook page.

The Facebook comments were brought to the attention of TeleTech by a person who claimed to be a member of the public, and following a disciplinary process Mr Teggart was dismissed.

Mr Teggart complained to the industrial tribunal that he had been unfairly dismissed and that his rights under Articles 8 (right to private and family life), 9 (right to freedom of thought and to manifest ones beliefs) and 10 (right to freedom of expression) of the European Convention on Human Rights (ECHR) had been violated.

However, the tribunal dismissed his claims and held that the finding of harassment was a reasonable conclusion for the disciplinary panel to reach, as the comments made on Mr Teggart's Facebook page satisfied the definition of harassment in Teletech's dignity at work policy (they were unwanted and violated A's dignity and created a degrading and humiliating environment for her). The tribunal also held that harassment could occur where comments were made to others and not only when comments were made directly to the particular victim.

In relation to the Human Rights claims, the tribunal held that Articles 8, 9 and 10 of the ECHR were not engaged. When Mr Teggart put his comments on his Facebook page he had abandoned any right to consider his comments as being "private" for the purposes of Article 8; the "belief" referred to in Article 9 did not extend to a belief about the promiscuity of another person; and the right of freedom of expression set out in Article 10 must be exercised responsibly and did not entitle Mr Teggart to make comments which damaged A's reputation and infringed her right not to suffer harassment.

The facts of this case are not dissimilar to the situation you are currently faced with. Depending on the precise nature of the comments made and any other relevant circumstances, the offending comments in this instance could amount to sexual orientation harassment, regardless of the fact that they have been made online and outside working hours and whether or not the rumours being spread are actually true.

Readers will be aware that harassment on the grounds of sexual orientation in employment is prohibited by the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, which define harassment as unwanted conduct, on grounds of sexual orientation, which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

As with any normal complaint of bullying and harassment, the employee’s grievance in this instance should be taken seriously and dealt with in accordance with the Labour Relations Agency’s Code of Practice on Disciplinary and Grievance Procedures. However, if you have a separate policy on Harassment it may be appropriate to deal with the complaint under that policy, so long as no less protection is provided for the employee bringing the grievance.

The employee should be invited to a meeting to discuss the grievance, and be informed of the right to be accompanied. Following the meeting, you should carry out a full investigation whilst ensuring that confidentiality is maintained. Your investigation might include speaking to any witnesses who have seen the comments and, because the comments have been made online, trying to obtain physical copies of them.

You should also conduct an investigatory meeting with the offending employee to ascertain their version of events. Following the investigation you should decide what action, if any, to take and notify the employee who has raised the grievance of your decision with an explanation as to how the decision was reached. The employee should be notified of their right to appeal against your decision.

As the case of Teggart demonstrates, the fact that the offending comments were posted outside working hours and on an employee’s personal Facebook page does not put them beyond the reach of disciplinary action where harassment of a colleague is found to have occurred. So if, after investigation, you decide that the offending employee’s online conduct warrants disciplinary action, disciplinary proceedings should be commenced in line with the Statutory Disciplinary and Dismissal Procedures.

Where inappropriate comments are made on social media sites there can be no reasonable expectation by the author that their comments will be kept private, as the comments are completely out of the author’s control once they are made online and there is nothing to stop others copying the comments and passing them on. Therefore, relying on the right to privacy under Article 8 of the ECHR will provide little or no defence for the offending employee in this instance, and relying on their rights under Articles 9 and 10 will likely be of equally little use.

Although it wasn’t an issue in Teggart, employers should be aware that they can be held vicariously liable for the actions of employees where harassment is deemed to have taken place, unless they can show that they took reasonably practicable steps to prevent harassment from occurring. Case law has shown that employers do not need to condone, or even be expressly aware that the conduct in question was taking place to be found to have allowed in some way for it to have happened.

In the case of Otomewo v Carphone Warehouse Ltd ET/2330554/11, the employer was found vicariously liable for the conduct of 2 staff members which amounted to harassment on the grounds of sexual orientation.

Mr Otomewo was the manager of a Carphone Warehouse store and whilst at work two members of his team used his iPhone without his permission and updated his Facebook status to say - “Finally came out of the closet. I am gay and proud”. When Mr Otomewo was subsequently dismissed for an unrelated matter, he brought various claims against the Carphone Warehouse, including one for sexual orientation harassment.

Mr Otomewo was successful in his claim for sexual orientation harassment, as the employment tribunal considered that it was reasonable for him to be embarrassed and distressed by the status update on his Facebook page as this was an unwanted and unnecessary intrusion into his private life on a public space, which amounted to sexual orientation harassment. The employment tribunal also found that as the comments were made “in the course of employment” (the employees’ actions took place during working hours and involved dealings between staff and a manager) the Carphone Warehouse, as the employer, was liable for such actions.

Although in this case the harassment occurred during working hours, employers can equally be held vicariously liable for harassment by their employees which takes place outside the workplace where the conduct in question is found to be closely connected to the work environment. Therefore, employers should ensure that that they have carried out appropriate training and have comprehensive social media policies in place, as well as clear equal opportunities and anti-harassment policies which include references to online bullying and harassment, to ensure that all staff are aware of the consequences of unacceptable behaviour whether online or otherwise.