The High Court has held in Smith v Trafford Housing Trust (2012) EWHC 3221 that a Christian employee was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct.
The court further held that his employer acted unlawfully when it demoted him.
Mr Smith is employed by the Trafford Housing Trust. The Trust provides residential housing to a population which is diverse in terms of ethnic origin, sexual orientation, religion and gender. The Trust describes itself as a non-political, non-denominational organisation which fosters a culture of showing respect and being non- judgemental towards customers and colleagues.
Mr Smith was a member of Facebook and 45 of his Facebook friends were colleagues. On his Facebook page he identified himself, as a manager of Trafford Housing Trust.
On 13th February 2011, he posted a link on his Facebook wall to a BBC news article, “Gay Church marriages’ set to get the go-ahead”, whereby he commented “an equality too far.” His colleague later that day commented “Does this mean you don’t approve?” Mr Smith then replied;
“No not really, I don’t understand why people 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.”
As a result of these comments, Mr Smith was suspended and later found guilty of gross misconduct. He was then demoted from his managerial position and as a result his pay was reduced by 40 per cent over a 2 year period.
Mr Smith appealed unsuccessfully against his demotion. Mr Smith then brought a claim in the High Court for breach of contract but not for unfair dismissal. The main issue for consideration was whether Mr Smith’s postings on Facebook amounted to misconduct. The High Court held it did not and therefore the Trust was in breach of contract demoting Mr Smith.
The High Court noted that his Facebook was clearly a personal account and he was not expressing views of the Trust himself. The court held that the obligation not to promote religious and political views did not extend to Mr Smith’s Facebook wall and that, as a matter of fact, Mr Smith had not been promoting his beliefs. Instead, he had been explaining his viewpoint, in response to a written invitation from a colleague to do so.
Whilst the court acknowledged that his comments had caused particular offence to an employee with different views, this was held to be a necessary price to be paid for freedom of speech.
It was significant that Mr Smith’s colleagues had chosen to make Mr Smith one of their Facebook friends. Mr Smith was free to express his religious and political views on Facebook, provided he acted lawfully, and it was for his Facebook friends to choose whether or not to receive them.
The Court further held that Mr Smith’s demotion, in breach of contract constituted a dismissal. However, because Mr Smith did not bring a claim for unfair dismissal only for breach of contract his damages were limited to the pay differential during the notice period. The High Court awarded just £98 to the claimant for his breach of contract claim.
This is clearly an influential case for future employment cases on social media.
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