“Whether he went on with the diary, or whether he did not go on with it, made no difference. The Thought Police would get him just the same. He had committed— would still have committed, even if he had never set pen to paper— the essential crime that contained all others in itself. Thoughtcrime, they called it.” – George Orwell, 1984
Last week, an employee of the Trafford Housing Trust, who had been demoted and had his salary cut by 40% for a posting that he made on his Facebook page, was successful in his High Court claim for breach of contract against his employer.
Adrian Smith expressed the view, on a page on Facebook which was not visible to the general public but critically was visible to several of his colleagues who were connected to him on the site, that gay marriages in church would be “an equality too far”. When questioned by one of these colleagues, via a comment on Facebook, what he meant by this, he explained that he had no objection to the State giving civil marriage to gay couples, but that in his opinion “the state shouldn’t impose its rules on places of faith and conscience”.
The trust took the view that in expressing this opinion, Mr Smith infringed the code of conduct which formed part of his employment contract, by expressing views on religious or political matters which might be upsetting to co-workers. Mr Justice Briggs in the High Court made clear in no uncertain terms that the Trust had misapplied its policy and thereby committed a “serious and repudiatory” breach of its contract. The Judge was equally clear that Mr Smith had done nothing wrong.
It is tempting to view this case on its specific facts, as a case about the misunderstanding of an employer’s social media policy, and the importance of disciplinary responses which are proportionate to the breach that occurs. Even in this narrow respect the case carries an important object lesson for any employer looking to apply such policies. The Trust no doubt believed that they were acting to prevent discrimination. But the consequences for them have been severe: even if the damages they ended up paying have been very low, the costs they will have incurred in defending Mr Smith’s claim are likely not to have been. It also seems likely that if Mr Smith had pursued his complaint in the Employment Tribunal, his damages could have been significantly higher.
But the case is of equal interest when viewed in its wider context. At the moment social media issues are enjoying a particular prominence in the press and in the public consciousness. A debate is going on about appropriate online behaviour, informed in part by the Director of Public Prosecution’s consultation on the boundaries of when conduct on Twitter and elsewhere ought to be prosecuted. At Pitmans, we have seen a notable rise in the number of enquiries and instructions we are receiving in relation to sometimes quite serious cases of defamation or harassment involving the internet.
But caution is required. There has been an erroneous tendency for social media users not to regard postings made on blogs or message boards as subject to the same constraints as more mainstream publications. Equally, there is now a danger that employers, rightly concerned not to be seen to be promoting or condoning genuinely harmful or discriminatory conduct, may err too far the other way. In a statement made after his success in Court, Mr Smith said that “[s]omething has poisoned the atmosphere in Britain, where an honest man like me can be punished for making perfectly polite remarks about the importance of marriage.”
Employers, like the public at large, need to be careful. In seeking to prohibit the most obvious forms of discrimination they must not subscribe to more subtle and insidious prohibitions on the fundamental rights that everyone has, to hold opinions and to express them honestly as part of a wider social dialogue. In an environment where the legal boundaries of expression are still being evolved, the consequences of inadvertently over-stepping the mark can be serious, time-consuming, and costly.