In the case of Smith v Trafford Housing Trust, the High Court has ruled that an employee was entitled to express his opinion on gay marriage on his Facebook profile without facing disciplinary action from his employer.

S was a manager for a private housing trust (“the Trust”).  In his contract of employment, S had agreed to take into account the values of the Trust and its Code of Conduct when performing his role.  The Trust describes itself as a non-political, non-denominational organisation and asks that employees do not promote their political or religious views.  The Code of Conduct reflects these principles and expects employees to promote a positive image of the Trust both in and outside work. 

Following a complaint by a colleague, S was disciplined for posting comments on his Facebook page expressing his disapproval of gay marriage.  Following a disciplinary hearing, S was found guilty of gross misconduct, and was demoted to a non-managerial position which involved a 40% reduction in pay.  S did not raise a claim for unfair dismissal in the Employment Tribunal, due to time limitations, but instead raised a claim for breach of contract in the High Court.  The High Court concluded that S’s comments on gay marriage did not amount to gross misconduct and, as such, his demotion by the Trust amounted to a breach of contract.  The main reasons given for this decision were:

  • S’s Facebook comments could not be considered by any reasonable reader to be made on the Trust’s behalf.  His employer was identified on the page, but it was clear from the nature of all his posts that it was a medium for personal or social information and views only;
  • S had not breached the Trust’s prohibition on promoting religious views as this didn’t extend to his Facebook page, and, in any event, he had not been canvassing his viewpoint by directly targeting his colleagues; and
  • Whilst many people might not have agreed with his comments, they were not particularly judgmental or disrespectful, and any offense taken by colleagues was not reasonable when viewed objectively.  The Court commented that upset caused by a difference of views was “a necessary price to be paid for freedom of speech”.

The other aspect of this decision focused on whether the Trust’s demotion of S amounted to an actual or constructive dismissal.  The Court held that S had been dismissed, as he had accepted that his original contract was at an end by agreeing to work in a different capacity and for a greatly reduced salary.  However he had only brought a claim for breach of contract and so his demotion amounted to a wrongful dismissal only.  This meant that S could only be awarded damages for the difference between his old and new wages during his 12 week notice period, which amounted to £95.

Impact for Employers

  • Cases concerning employees’ use or misuse of social media are becoming increasingly common before Employment Tribunals and this case provides some useful comments and guidance on the issues that frequently arise.  Interestingly, the High Court took the view that the employee’s Facebook page was a social and personal medium, when, in previous decisions, Tribunals have held that an employee has no right to privacy in respect of comments put on Facebook.
  • The decision also acknowledges that, due to the nature of diversity in the workplace, it is unavoidable that conflicts may occur in the religious and political views held by employees.  If these views are expressed moderately, then it will perhaps be difficult for an employer to argue that disciplinary action should be taken due to upset caused to another, provided the views have not been expressed in a disrespectful or offensive way, when viewed objectively.