Breach of settlement agreement by ex-Employer via former colleague?

[fmsthrowaway]

I recently negotiated a settlement agreement with my employer, one of the clauses is:

"The Company shall use reasonable endeavours to ensure that its officers, employees and workers shall not make any adverse or derogatory comment about the Employee or do anything that shall, or may, bring the Employee into disrepute."

I recently uploaded a photo of myself to my Instagram profile. The profile isn't set to private and I had one ex-colleague as a follower.

The photo is of me and a friend in a hotel room dressed in fetish outfits prior to attending a fetish/sex club. Nothing crazy, just latex. The photo was hashtagged with the City we were in and the name of the club.* The friend in question is a professional Dominatrix with a profile set to private.* She was not tagged in the photo but did click like on it, and has commented on some of my other Instagram photos so anyone looking at my pics could find my way to her profile.

The ex-colleague in question DM'ed me to say "WTF" and I explained that the club was actually quite tame to what I expected.

Earlier today another ex-colleague who left the business before I did whatsapped me a screenshot of the photo, and I found out that the colleague/follower had sent it to the work whatsapp group.

I asked him what people said and to send me a screenshot of the replies, he could only copy/paste a few.* He also tried to spin it as "you both looked good so thought it needed to be appreciated"

Would this qualify as a breach of the agreement?

The reason I left was due to bullying/harassment in the form of derogatory comments and conversations being held about me behind my back. It's not unreasonable to think the photo could have sparked "adverse or derogatory" comments and that management who are also in the whatsapp group should have put a stop to any discussion.

It's a fair point to comment that if I wanted privacy my IG profile should have been set to private, but I also don't expect people to screenshot it and circulate to the company whatsapp group and former colleagues. Regardless I am entitled to a private life and to know that my photos aren't being circulated.

Would this qualify as a breach of the agreement clause? If so what potential remedies are there
*

[jaguarsuk]

Others might disagree, but I would say no.

You published the photo publicly and without placing restrictions on its use, that means anyone can copy it and then distribute it where they like.

[fmsthrowaway]

Others might disagree, but I would say no.

You published the photo publicly and without placing restrictions on its use, that means anyone can copy it and then distribute it where they like.

I understand that, but it's more the subsequent discussions/comments that would clearly have taken place as a result

[jaguarsuk]

The problem is whether any manager saw it, it's not unreasonable that they are not on the group policing it 24 hours a day and certainly if I were representing them that would be my argument. Then there is the nature of the comments and how an individual views them at the time, if they were generally along the line of "you both looked good so thought it needed to be appreciated" then I don't think I as a line manager would think them inappropriate.

[fmsthrowaway]

The problem is whether any manager saw it, it's not unreasonable that they are not on the group policing it 24 hours a day and certainly if I were representing them that would be my argument. Then there is the nature of the comments and how an individual views them at the time, if they were generally along the line of "you both looked good so thought it needed to be appreciated" then I don't think I as a line manager would think them inappropriate.

The two company directors are both in the group, as are the two* Managers and also the person who was bullying/harassing me via derogatory comments. One Director in particular is fairly active and will always comment.

And the person who shared the photo wouldn't send me an SS of the replies, which makes me think they weren't all positive. I also noted that the person who shared and one other then started following the Dominatrix account of the person in the pic with me. Put it this way, the photo and her profile are bound to set tongues wagging

[jaguarsuk]

If you haven’t any evidence of comments then there’s nothing to discuss really, if you say they have breached the agreement they’ll say they haven’t and you can’t prove they have.

[fmsthrowaway]

If you haven’t any evidence of comments then there’s nothing to discuss really, if you say they have breached the agreement they’ll say they haven’t and you can’t prove they have.

Disagree there, because it's easy to prove that they haven't been making derogatory comments by sending a SS of the replies to the photo.

I am also aware that the employee that shared the photo then added my Pro-Dominatrix friend on Instagram (her profile is set to private), as did an ex-colleague from the office I worked at.* This second colleague reports to the person who was harassing/bullying me.

Her profile as you would expect from a pro-Dominatrix is very revealing with links to other social media profiles, and subsequently more adult content featuring the two of us.*

So the likelihood of conversations taking place about me and my proclivities/fetishes depends on how far they've explored

[jaguarsuk]

Disagree there, because it's easy to prove that they haven't been making derogatory comments by sending a SS of the replies to the photo.

You don't have a screenshot of the conversation, so you have no evidence and it's your word against theirs.

I am also aware that the employee that shared the photo then added my Pro-Dominatrix friend on Instagram (her profile is set to private), as did an ex-colleague from the office I worked at. This second colleague reports to the person who was harassing/bullying me.

Her profile as you would expect from a pro-Dominatrix is very revealing with links to other social media profiles, and subsequently more adult content featuring the two of us.

So the likelihood of conversations taking place about me and my proclivities/fetishes depends on how far they've explored

The clause you included in your original post doesn't allow for likelihood, it is very clear that it must have happened and therefore unless you can prove it did actually happen there is no breach.

[fmsthrowaway]

You don't have a screenshot of the conversation, so you have no evidence and it's your word against theirs.



The clause you included in your original post doesn't allow for likelihood, it is very clear that it must have happened and therefore unless you can prove it did actually happen there is no breach.

you realise that they can disprove my suspicions with one SS, right?

I mean, its not hard to say to mgmt:

"I understand pictures of me from my instagram are being circulated in the work whatsapp group, and also to ex-colleagues.* Whilst it's my fault for not making my profile private - I did tell the person circulated when he asked to follow me that I don't normally add colleagues to social media, so I don't expect him to be sharing them internally.

Obviously the photo in question and tagged destination is a bit risque, it's not unreasonable to think what kind of responses the photo might provoke.* <Sharer> assures me they were all positive/complimentary but considering the reasons why I left, I find that hard to believe.

As per our agreement you must make reasonable endeavours to prevent any adverse or derogatory comments being made about me.* I hope you've shut any conversation down and it would be pretty easy to put my mind at rest here"