The High Court has held in Smith v Trafford Housing Trust that a Christian manager was entitled to express his opposition to gay marriage on Facebook, and that this did not constitute misconduct in relation to his employment.

In response to a BBC news story, Mr Smith made comments on his Facebook page opposing gay marriage. One work colleague then accused him of ‘blatant homophobia’. Relying on contractual provisions in its Code of Conduct and Equal Opportunities Policy, the Trafford Housing Trust found that his comments had the potential to cause offence, could be seriously prejudicial to the reputation of the Trust, and breached its Code of Conduct and Equal Opportunities Policy. It concluded that this amounted to gross misconduct. However, because of his 19 years’ service, Mr Smith was demoted rather than dismissed, with a phased 40% salary cut. Demotion was a sanction permitted under the disciplinary procedure in the event of misconduct. Since he was out of time to bring an unfair dismissal complaint, Mr Smith brought a breach of contract claim in the High Court alleging that the Trust had breached his contract of employment by demoting him, since his actions did not amount to misconduct.

The High Court upheld Mr Smith’s claim. It found that no reasonable reader of the Facebook page would have concluded that Mr Smith’s posts were made on behalf of his employer, although he clearly stated where he worked. The Court rejected the suggestion that having 45 colleagues as Facebook friends brought a work-related context to the postings for the purposes of the Code of Conduct and Equal Opportunities Policy. Whilst an employer may legitimately restrict an employee’s freedom of expression and belief at work, this restriction should not extend to personal or social life. Although Mr Smith’s comments had caused offence to an employee who held different views, the Court considered that this was a necessary price to pay for freedom of speech. It concluded that the comments were not capable of bringing the Trust into disrepute and did not amount to misconduct. Demotion was therefore a breach of his contract of employment. However, damages were limited to the pay differential during Mr Smith’s notice period which amounted to just £98.

The termination of his contract and imposition of new terms and conditions was also a dismissal, although the issue of fairness did not arise since Mr Smith did not bring an unfair dismissal claim. Had he done so, it seems likely that he would have been successful.

The High Court commented that the encouragement of diversity in the recruitment of employees inevitably involves employing people with widely different religious and political beliefs, some of which, however moderately expressed, might cause distress to others who hold deeply-felt opposite views. This is also relevant when considering how far employers can regulate conduct outside work in relation to Facebook and other social media. Although genuinely offensive comments on social media, and comments which conflict with the employee’s role at work, or bring an employer into disrepute may legitimately give rise to disciplinary proceedings, this case emphasises the dangers for employers of overreacting to more moderate expressions of opinion.