The High Court has decided that a housing association was in breach of contract when it demoted Adrian Smith for saying on his personal Facebook page that gay marriage was an “equality too far”. Beyond the controversial topic of gay marriage, this case is of wider interest because it illustrates how difficult it is to draw a clear dividing line between work and private life, particularly when dealing with comments on social media.
Despite the fact that it was possible to identify his employer from his Facebook profile, and that the privacy settings allowed friends of friends to view postings on his wall, the judge ruled that it would be obvious, even to a casual reader, that he used Facebook for personal and social rather than work-related purposes. Interpreted in that light, he dismissed the employer’s arguments that “his moderate expression of his particular views about gay marriage in church” in his own time infringed the employer’s code of conduct or equal opportunities policy. In particular he dismissed claims that the comments brought the employer into dispute, or promoted religious views among colleagues and customers.
Normally these issues would come up in the context of an unfair dismissal claim, but in this case Mr Smith failed to bring proceedings in time, and instead opted for a breach of contract claim. Regardless of the legal forum, the lesson for employers is to think very carefully before disciplining employees for moderately-worded comments they make in their private capacity, even if they are inconsistent with the employer’s publicly-stated position on that topic. However, other recent cases have illustrated that there are likely to be more compelling grounds for disciplinary action if comments on social media, even if made in a private capacity, are directly critical of the employer’s business or other colleagues.