Legal Updates

Employment Law – Breach of Contract – Facebook – Wrongful Dismissal – Contract of Employment – Social Media

In the recent case of Smith v. Trafford Housing Trust [2012] EWHC 3221, the Court held that a housing trust had acted in breach of contract by demoting a manager because he made comments on his Facebook page opposing gay marriages in church.

Background

• The claimant employee (“S”) worked as a manager for his employer, a housing trust (“T”);
• S was the subject of disciplinary proceedings after he commented on his Facebook page that to approve gay church marriages was “an equality too far”;
• In response to a work colleague’s comment on his page, S also stated that the bible was explicitly clear about marriage being for men and women and that the state should not impose rules on places of faith;
• The outcome of the disciplinary proceedings was that S had committee gross misconduct and S would be demoted with a reduction in pay.

Issue

The issue to be decided was whether S’s actions amounted to a breach of T’s Code of Conduct (“Code”) and/or its Equal Opportunities Policy.

In particular, T argued that:

• S’s Facebook postings might bring T into disrepute, contrary to the Code;
• S’s Facebook postings promoted his religious views which is contrary to the part of the Code relating to relationships with customers, members of the public and colleagues;
• S failed to treat fellow employees with dignity and respect. This included being non-judgmental in approach, and was engaging in conduct which could cause another person to feel uncomfortable, embarrassed or upset, contrary to the Equal Opportunities Policy and the Code.

Decision

The Court decided in favour of S and held:

• S’s Facebook postings did not and could not bring T into disrepute. The Court made clear that no reasonable reader of S’s Facebook page could rationally conclude that his postings were made on T’s behalf;
• It is noteworthy that the Court had regard to S’s Facebook postings for the period in question as a whole. It was concluded that S used Facebook for social rather than work-related purposes;
• Employers are entitled to restrict employees’ rights to promote their religious or political beliefs at work or in work-related contexts;
• The fact that T had a Code of Conduct, did not extend to S’s personal or social life and his Facebook page was an aspect of his social life outside work;
• To construe provisions in the Code and Equal Opportunities Policy, which required employees to treat colleagues with dignity and respect and to refrain from conduct which might make others feel uncomfortable, embarrassed or upset as applying to every situation outside work would be to impinge on S’s freedom of speech. No reasonable reader of the Code and Equal Opportunities Policy would think they applied in such circumstances;
• T did not have the right to demote S for his Facebook postings and the fact that T did so, constituted a breach of contract (as well as wrongful dismissal);
• The amount of damages awarded to S was the difference between his contractual salary and that paid to him during his new role (12 weeks) because T would have acted in the same way, except with 12 weeks’ notice.

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© RT COOPERS, 2012. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.