In the case of Smith v Trafford Housing Trust (“the Trust”) the High Court found that by demoting Mr Smith for expressing his personal views on gay marriage on his Facebook page the Trust had acted in breach of contract, entitling Mr Smith to an award of damages – albeit on the facts only £98.
The case raises a number of issues – not least, the most appropriate forum in which to bring a claim and, fundamentally, whether Mr Smith had in fact committed misconduct at all.
- Mr Smith’s Facebook page identified him as working for the Trust;
- He had 45 work colleagues among his Facebook friends (silly, silly);
- At least one of those colleagues was offended by his comments;
- Mr Smith’s privacy settings were such that his page was accessible by his Facebook friends and also by friends of friends.
The Trust demoted Mr Smith as a result of the comments, and he brought a claim that such action was a breach of his contract of employment. The High Court agreed, finding that:
- No reasonable reader of Mr Smith’s Facebook comments could sensibly form the view that they were posted on the Trust’s behalf – partly in the context of other posts, and partly because Mr Smith clearly used Facebook for social rather than work purposes – despite having 45 colleagues as friends.
- Workplace diversity involves employing persons with different religious and political beliefs. If expressed, however moderately, some of those beliefs may cause offence to those with opposing views.
- Mr Smith’s moderate expression of his personal views, (on Facebook outside of working hours), could not sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager.
- Mr Smith’s use of Facebook was not in a sufficiently work-related context to breach the Trust’s disciplinary policies (even though those policies did, to a degree, cover conduct outside working hours and on Facebook).
- Mr Smith’s Facebook friends had each made a choice to be his friend on Facebook and so therefore to seek his views.
- If viewed objectively Mr Smith’s postings were not judgmental, disrespectful or liable to cause upset, offence, discomfort or embarrassment. The language used was moderate. He simply expressed his views.
- The demotion was a repudiatory breach of contract and consequently an actual dismissal.
The reason for the low award was the fact that Mr Smith had, without waiving his right to damages, continued to work at the lower grade under protest. The Court held that the original contract was at an end and Mr Smith had agreed to work in a different capacity for a reduced salary, under a new contract. The case was therefore one of wrongful dismissal and the damages limited to losses during the notice period. The £98 was the difference between the two salaries during that period.
Mr Smith had, (for reasons best known to himself), unfortunately only brought a breach of contract claim in the High Court and not a claim for unfair dismissal in the Employment Tribunal. Consequently he could not be awarded compensation for unfair dismissal – which claim would almost certainly have succeeded given the High Court’s findings, and which would certainly have resulted in a considerably more substantial award.
The case is yet another valuable lesson for employees and employers alike in the dangers of committing comments to screen. Employees are starting to realise the risks of doing so – but employers need to be mindful of the risks of disproportionate reactions to comments made by employees.
Whilst the distinction between the workplace and an employee’s private life have blurred considerably in recent years, employers must accept that there is a line which their authority does not cross. The need to enforce equality principles and encourage diversity can sometimes blind employers to that – this case is a good reminder.