Smith v Trafford Housing Trust  EWHC 3221 (Ch)
This recent High Court decision acknowledged the difficulty of identifying where the work life ends and the social/private life begins; it concerned postings made by a Christian employee on Facebook about his views on gay marriage in church. The court considered whether the comments constituted misconduct thus entitling the employer to demote the employee or whether any such demotion would amount to a breach of contract.
The Terms of Employment
Mr Adrian Smith was employed by the Trafford Housing Trust (the “Trust”), as a housing manager. Under Mr Smith’s terms of employment, he was bound by a Code of Conduct which made it clear that employees were required to:
- be committed to the aims of the Trust, and promote a positive image of the Trust;
- maintain the highest standards of personal and professional conduct and integrity at all times, and to be considerate to their colleagues and members of the public;
- act in a non-confrontational and non-judgmental manner, with all customers and colleagues; and
- not engage in any activities which may bring the Trust into disrepute, either at work or outside work. This included engaging in unruly conduct where the employee could be identified as an employee of the Trust.
In addition, Mr Smith was bound by the Trust’s Equal Opportunities Policy which required a respectful and non-judgmental approach to be taken by employees, and stated that employees should not engage in any conduct which may make any other person feel uncomfortable or upset.
Under the Trusts’ Disciplinary Procedures and Gross Misconduct, where misconduct occurred, the Trust was able to demote or suspend an employee without pay, as a sanction and expressly stated that a breach of the Trust’s rules and conduct occurring outside working hours or away from the Trust’s premises “may be considered as a breach of discipline and be subject to disciplinary procedures”.
Mr Smith’s Facebook Comments
Mr Smith was a member of Facebook, and on his Facebook page he stated that he was employed in a managerial position by the Trust, and that he was a “full on charismatic Christian”.
Mr Smith posted a link to a BBC news article which had the heading, “Gay church ‘marriages’ set to get the go-ahead”, together with Mr Smith’s own comment, “an equality too far”. In response, a colleague of Mr Smith’s posted, “does this mean you don’t approve?”, to which Mr Smith posted a further comment stating: “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 it’s rules on places of faith and conscience”.
The Trust’s Disciplinary Proceedings
Following this exchange, the Trust suspended Mr Smith from work, on full pay and made him the subject of a disciplinary investigation. The Trust considered that potential misconduct had been carried out by Mr Smith through comments which had the potential to cause offence, comments which could be seriously prejudicial to the Trust’s reputation, a serious breach of the Trust’s Code of Conduct and Equal Opportunities Policy and Mr Smith’s failure to take managerial responsibility.
Mr Smith was found guilty of gross misconduct but due to his length of service, Mr Smith was demoted with immediate effect to a non-managerial role, with a consequential 40% reduction in his annual salary, to be phased over 12 months. Mr Smith subsequently appealed, and whilst the appeal was dismissed, the phasing of Mr Smith’s salary reduction was extended from one to two years.
Mr Smith did not accept that he had been guilty of gross, or any, misconduct and reserved his position whilst continuing to work in the non-managerial role assigned to him. Mr Smith claimed that it was a breach of contract for the Trust to demote him and reduce his salary and brought a civil claim against the Trust. Mr Smith missed the statutory deadline and did not commence proceedings for unfair dismissal in the Employment Tribunal.
The High Court’s Decision
The High Court held that Mr Smith had not committed any misconduct, and the Trust had acted in breach of contract by demoting him.
The Court held that no reasonable reader would think that Mr Smith’s comments on his Facebook page were those of his employer. Although Mr Smith had mentioned that he was employed by the Trust on his Facebook page, Mr Smith’s Facebook was clearly for personal and social use. In addition, whilst Facebook can be used as a medium for work related communications, and indeed a number of Mr Smith’s colleagues were his Facebook friends, they chose to do so and therefore chose to receive his opinions. Further, the Court held that the moderate expression of Mr Smith’s views, outside of working hours, could not lead a reasonable reader to believe that these were the views of the Trust.
The Court also held that Mr Smith had not been promoting his religious views. Instead, he had responded to a written invitation to do so, and had done so in a moderate manner; the court viewed Mr Smith’s comments as a discussion of beliefs which was not prohibited. The Court were of the opinion that it would be surprising if an employer was able to extend a prohibition to promote religious or political beliefs to an employee’s personal or social life.
The Court followed the decision in Hogg v Dover College  ICR 39, and as Mr Smith accepted his original contract had come to an end by agreeing to work in a different capacity and for a reduced salary, he had entered into a new contract of employment with the Trust. Due to the fact that Mr Smith’s demotion was in breach of his contract of employment, this amounted to a wrongful dismissal.
Whilst Mr Smith had reserved his position in relation to the breach of contract and had not waived his right to damages, due to the fact that Mr Smith had not pursued an unfair dismissal case, damages were limited to the difference between the amount payable to Mr Smith during his statutory 12 week notice period under his previous contract and the amount paid to him in the demoted role during this period. However, the Court did express dissatisfaction at this result as there was a “feeling that justice has not been done”. Had Mr Smith been successful in an unfair dismissal claim, he would have been entitled to a much greater compensatory award reflecting loss of salary and benefits.
Whether disciplinary action can be taken by employers for posts made on social media sites is still a developing area of law, but this case provides another clear reminder that employers should not immediately find misconduct in cases involving social media. Similarly, employers should take an objective approach when assessing employee’s social media posts and be wary of claiming ‘damage to reputation’ without being able to show evidence of such damage or a real risk of damage being caused. Employers need to ensure that they have clear policies on the use of social media, both in and out of the workplace. Where employers incorporate codes of conduct into their employee’s employment contracts, employers will need to ensure that these policies are drafted widely enough to allow disciplinary action to be taken for posts on social media sites.
This case also serves as a reminder that that variation to an employee’s contract of employment may be sufficiently substantial to constitute a dismissal. Whilst employees may continue to work under the new terms of employment, they may bring claims for unfair or wrongful dismissal or breach of contract.
For further information, please contact Niki Avraam or the Partner with whom you usually deal.