In another interesting social media case, the High Court has decided that a Christian employee did not commit misconduct by expressing his views on gay marriage.
The Court made some very interesting observations which appear to limit an employer’s ability to regulate the use of social media outside of work. The Court rejected the notion that having colleagues who were Facebook friends would necessarily give rise to a work related context and necessarily damage an employer’s reputation.
Mr Smith had a Facebook page which stated that he was an employee of Trafford Housing Trust (the Trust).
Mr Smith made comments on his Facebook wall setting out his views on gay marriage. Mr Smith had a number of colleagues who were his friends on his Facebook website. One of them took offence at an initial post which had a link to a BBC news article and stated that this was “an equality too far”. She asked Mr Smith to explain what he meant – which he subsequently did. Mr Smith was then suspended and subjected to a disciplinary hearing.
The disciplinary hearing concluded that Mr Smith was guilty of gross misconduct. However, instead of dismissing him, the Trust decided to demote him instead. This would cause Mr Smith’s salary to drop by 40 per cent over a two year period.
In reaching its decision, the Trust decided that the post caused offence, damaged the reputation of the Trust and breached the Trust’s Equal Opportunities policy and Code of Conduct (which prohibited employees from promoting political or religious views).
The High Court decided that Mr Smith was entitled to express his views on Facebook and that his actions did not amount to misconduct. It took into account the following key reasons:
- no reasonable person would have thought that Mr Smith was expressing his views on the Trust’s behalf (even though his Facebook page stated that he was employed by the Trust);
- Mr Smith expressed his views in a moderate manner;
- Mr Smith’s views were expressed on a personal website page, outside of normal working hours;
- the obligation under the Trust’s Code of Conduct not to promote political and religious views did not extend to Mr Smith’s Facebook wall, which is a personal and social medium. The High Court rejected the argument that, because 45 colleagues were Mr Smith’s friends, there was a work-related context. Additionally, Mr Smith was not promoting his views; he was expressing his views in the context of being invited by a colleague to do so.