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27th November 2012

Social Media – Employee Entitled to Express Views about Gay Marriage on Facebook

In the recently decided case of Smith v Trafford Housing Trust, the High Court considered whether a Christian employee who had made comments about gay marriage on Facebook had committed misconduct. It also considered whether the employer acted in breach of contract when it demoted the employee for making such comments.

Mr Smith was employed by the Trafford Housing Trust (the Trust) and his continuity of employment dated from 1993. At the relevant time he was employed as a housing manager. The Trust provided residential housing to a population which is diverse in terms of ethnic origin, sexual orientation, religion and gender. In addition, the Trust described itself as a non-political, non-denominational organisation.

Mr Smith was contractually bound by the Trust’s Code of Conduct which, amongst other things, made it clear that employees were required to act in a non-confrontational, non-judgmental manner with customers and colleagues.  In addition, employees were to refrain from engaging in activities which might bring the Trust into disrepute, either at work or outside work, including by making derogatory comments about the Trust or engaging in unruly or unlawful conduct on sites such as Facebook.  Mr Smith was also bound by the Trust’s Equal Opportunities policy.

The Trust’s Disciplinary Procedure provides that in the event of misconduct, the Trust might demote an employee as a sanction. It also made it clear that conduct occurring outside working hours was capable of being a breach of discipline.

The event which led to Mr Smith being disciplined was that on 13 February 2011, he posted a link on his Facebook wall to a BBC news article, “Gay church ‘marriages’ set to get the go-ahead”, adding the following comment of his own: “an equality too far.”   In response, that same day, his colleague, Ms Stavordale, posted a comment on his Facebook wall, “Does this mean you don’t approve?”.  Mr Smith’s response was: “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 his comments on Facebook, Mr Smith was suspended on full pay on 17 February 2011 and subjected to a disciplinary investigation. Ms Stavordale was interviewed by the Trust as part of the investigation and stated that she found Mr Smith’s comments to be offensive and blatantly homophobic, while others described them as “out of order” or “silly”.

A disciplinary hearing took place on 8 March 2011 and Mr Smith was found guilty of gross misconduct. Although his employer considered that he deserved to be dismissed, it decided to demote him from his managerial position instead. As a result, his pay was reduced by 40 per cent over a 2 year period, from nearly £35,000 to around £21,000.

Mr Smith appealed unsuccessfully against his demotion.  Mr Smith did not bring a claim for unfair dismissal but brought a claim in the High Court for breach of contract. The parties agreed that the main issue for consideration was whether, objectively speaking, Mr Smith’s postings on Facebook amounted to misconduct. If they did, then the Trust was contractually entitled to demote him. If they did not, then the Trust was in breach of contract by demoting him.

The court held that Mr Smith did not breach his employment contract when he expressed his views about gay marriage on his Facebook wall, in the manner in which he did. Consequently, the court found that the Trust had not been entitled to characterise Mr Smith’s conduct as misconduct warranting demotion. The Trust had acted in breach of contract by unilaterally imposing a demotion on Mr Smith and had effectively dismissed him from his old role.

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