The High Court has upheld an employee’s breach of contract claim after his employer demoted him for making comments on Facebook which expressed his personal views on gay marriage.
Some more facts
In Smith v Trafford Housing Trust, the employer treated this as gross misconduct (maintaining he was in breach of the Trust’s Code of Conduct and acted contrary to its equal opportunities policy), told him he deserved to be dismissed but due to his long record of loyal service, it would demote him to a non-managerial position with a 40% pay cut phased over 12 months.
Mr Smith did not accept he had been guilty of misconduct in posting the comments on Facebook. The specific comments he made were ‘an equality too far’ in respect of gay marriages getting the go-ahead, and, in response to a colleague asking whether this meant he didn’t approve, ‘No, not really, I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience’.
Mr Smith continued to work in the more junior non-managerial role but claimed breach of contract.
What did the Court conclude?
The High Court held that:
- Facebook had not acquired a sufficiently work-related context here to attract the application of the Trust’s disciplinary policies, even though those policies themselves did cover conduct outside working hours and on Facebook.
- No reasonable reader of Mr Smith’s Facebook page could conclude that what he wrote about gay marriage was posted on behalf of the Trust. Reading the wall as a whole, it included posts about sport, motor vehicles and food and it was clear that he used Facebook for personal and social purposes.
- Mr Smith’s moderate expression of his personal views on his personal Facebook wall at a weekend, outside of working hours, could not lead any sensible reader to think the worse of the Trust for having employed him.
- Mr Smith’s postings on gay marriage were not, viewed objectively, disrespectful or liable to cause upset, offence, discomfort or embarrassment, nor were the manner and language in which he expressed his views.
If you are considering taking disciplinary action against an employee as a result of material on Facebook or another social media website, contact your EEF adviser for help – we can review the policies and procedures you have in place and advise whether, on the particular facts, we think it is legitimate to commence disciplinary proceedings. These types of cases are always fact sensitive and may involve more extreme and offensive views which suggest that the employee is making the remarks on behalf of his employer.
Read the judgment.