Labour & European Law Review Weekly Issue 309 07 March 2013
The growing use of social media has inevitably raised questions about whether employees who post their political or religious views on their Facebook page can be found to have brought their employer into disrepute. In Smith v Trafford Housing Trust, the High Court said that as Mr Smith’s page was clearly for expressing his personal and social views, his employer was guilty of wrongful dismissal when they demoted him for expressing his views on gay marriage.
On 13 February 2011 Mr Smith, a practising Christian and occasional lay preacher, posted a link to a BBC news website article headed: “Gay church ‘marriages’ set to get the go ahead” on his Facebook wall page. He then added the comment: “an equality too far”. In response to a work colleague’s question about whether that meant he didn’t approve, he expanded on his original comment at greater length.
On 17 February Mr Smith was suspended from work on full pay for making the comments and after a disciplinary hearing in March, was told that he was guilty of gross misconduct. However, because of his long service, he was demoted to a non-managerial post as opposed to being dismissed which resulted in a 40 per cent cut in his pay.
He issued a claim for breach of contract in the High Court and continued to work under protest in the new job. The Trust argued, among other things, that by posting the comments on his page which identified him as one of its managers, he was in breach of its code of conduct for employees and its equal opportunities policy.
High Court decision
The High Court agreed with Mr Smith that his demotion was a breach of contract. First of all, his page was clearly non-work related. Although he identified himself as a manager at the Trust, it was obvious that he used it for expressing his personal and social, rather than work-related, information and views.
Nor had his views brought the Trust into disrepute. The Trust prided itself on encouraging diversity both among its customers and its employees and that inevitably involved employing people with widely different religious and political beliefs and views, some of which, however moderately expressed, might offend people who held the opposite views.
The judge could not see how Mr Smith’s “moderate expression” of his particular views about gay marriage in church, on his personal Facebook wall at a weekend out of working hours, could sensibly lead any reasonable reader to think worse of the Trust for having employed him as a manager.
Nor had he breached his employer’s code of conduct which prohibited the promotion of political or religious views. Although 45 work colleagues were listed as friends on his Facebook page, it was still not sufficiently work-related to have violated the code. It would be different if he had sent a targeted e-mail to work colleagues promoting his political or religious views from home in the evening, but he had not done that.
It was irrelevant that postings on Mr Smith's wall would appear automatically on the newsfeed of his friends' Facebook pages, as that was their choice, when they made him one of their Facebook friends. He was in principle free to express his religious and political views on his Facebook page, provided he acted lawfully, and it was for the recipients to choose whether or not to receive them.
Mr Smith's postings on gay marriage were not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence and nor was the way in which he chose to express those views.
However, the judge then held that by virtue of continuing to work for the Trust in a non-managerial role, the original contract had come to an end and the Trust was guilty only of wrongful dismissal. The damages were therefore limited to the financial loss during the contractual notice period which was just £98 - the difference between his earnings in the two jobs for the 12 weeks' notice period.