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Issue 286, Friday 22 February 2013 - 12 Rabi' al-Akhar 1434

Legal Corner: Manager wrongfully demoted for Facebook comments

By Safia Tharoo (Barrister, 42 Bedford Row, London)

The High Court recently handed down judgment in the case of Smith v Trafford Housing Trust (“the Trust”). Mr Smith worked as a Housing Manager for the Trust. One Sunday last year he was at home reading the BBC News website when he saw an article about the proposal to allow civil partnerships for same-sex couples to take place in religious settings in England and Wales. Mr Smith was a practising Christian and occasional lay preacher, and therefore posted a link to the news story on his Facebook page, together with the comment ‘an equality too far’. Two of his work colleagues - who were also Facebook friends - responded to the post, one asking whether he objected to the proposal. Mr Smith replied that the Bible defined marriage as between a man and a woman and, while it was up to the state to offer civil marriage to same-sex couples, “the state shouldn’t impose it’s [sic] rules on places of faith and conscience.”

The posts were seen by another work colleague who reported them to the Trust; a disciplinary hearing was convened, at which the Trust heard that Mr Smith intended the post to be “provocative” (in the sense of thought-provoking); that his Facebook profile identified him as a member of the Trust’s neighbourhood management team; and that a sizeable proportion of his Facebook friends were Trust employees. It also noted that the comments had caused “concern and distress” to members of staff. Taking these factors into account, the Trust concluded that Mr Smith’s two Facebook comments amounted to serious breaches of its rules for which he “deserved” to be dismissed. However, as a result of his long and loyal service, he was demoted to a non-managerial position with a 40% reduction in pay. He was also given a final written warning for gross misconduct. Mr Smith appealed against the decision to demote him but his appeal was unsuccessful. Mr Smith therefore brought a claim against the Trust in the High Court, arguing that since he had not been guilty of misconduct, his employer had breached his contract by demoting him and reducing his pay.

The High Court considered the charges against Mr Smith and decided first that the Facebook postings did not bring the Trust into disrepute as they believed. It held that Mr Smith’s views were “moderate” and that it was clear that he used his Facebook page for personal rather than work use. It also noted that his comments had been posted out of work hours. Therefore, although Mr Smith had noted the name of his employer on his personal details, it was likely that anyone reading his comments would have thought less of the Trust for employing him as a result of his posts. The High Court also dismissed the Trust’s argument that Mr Smith had promoted his religious and political views at work, contrary to its policies. The Trust had relied upon the fact that many of Mr Smith’s Facebook friends were work colleagues and at least one was a customer of the Trust. They therefore asserted that the Facebook page had acquired a sufficient work-related context. The Court however reiterated its view that the page was clearly personal in nature. Whilst it was not entirely separate from work as it could be read by colleagues, it was up to them to decide if they wanted to befriend him on Facebook and thus have access to his personal views. Finally, the Court rejected the Trust’s argument that, in making the Facebook comments, Mr Smith failed to treat his colleagues with dignity and respect, contrary to its Code of Conduct and equal opportunities policy. It held that these rules did not apply to S’s personal Facebook page and, even if they did, the comments were not - in content, manner or language - judgemental, disrespectful or inherently upsetting. It was not, therefore, objectively reasonable for one colleague to be offended by their content and for another to be offended by their tone. In any event, frank, but lawful, expressions of religious or political views may often cause a degree of upset, and even offence, where none was intended, but that was a necessary price to pay for freedom of speech. Accordingly, the Court held that Mr Smith was not guilty of any misconduct in breach of the Trust’s rules, and that his claim for breach of contract was successful.

There is often a blurring of the distinction between a person’s work and personal life when it comes to the use of social media such as Facebook, Twitter and LinkedIn. Many employers now have policies which specifically refer to social media, but there still needs to be a distinction between work and private life. An employer cannot interfere merely because it has sensitivities about an employee’s expression of his personal views.

However, if an employee were to refer for example to specific colleagues or work related issues, this may take his actions outside of the private sphere and justify disciplinary action by his employer. What is clear from this case is that context is critical. Safia Tharoo, Barrister, 42 Bedford Row, London

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