The fairness of dismissals relating to the use of social media has been considered in a number of cases recently highlighting that the distinction between the working and private life is a fine one. The common argument from employers of damage to reputation justifying dismissal, where employees breach codes of conduct set at work through use of social media outside of work, has so far not been readily accepted in cases coming before the employment tribunal.
The High Court has considered the issue of conduct outside of work and social media in relation to comments made on Facebook in Smith v Trafford Housing Trust  EWHC 3221 (Ch). Mr Smith was a Christian and the issues were whether his personal views posted on Facebook about gay marriage amounted to misconduct and whether Trafford Housing Trust had acted in breach of contract for demoting him after having made the comments i.e. whether he had been dismissed from his old role as a result of the demotion.
In Smith v Trafford Housing Trust unusually, the issue was not whether the employee had been unfairly dismissed (Mr Smith did not bring an unfair dismissal claim) but whether there had been a breach of contract by Mr Smith and deemed termination as a result of Trafford Housing Trust imposing demotion on him.
Mr Smith was employed by the Trafford Housing Trust as a housing manager. He was contractually bound by a Code of Conduct which made clear that employees were obliged to be committed to the aims of the Trust to maintain a positive image; that they should act in a non-judgmental manner and should not engage in activities that could bring the Trust into disrepute inside or outside work including conduct on sites like Facebook.
He was also bound by the Trust’s Equal Opportunities policy that stated that colleagues and customers were to be treated in a non-judgmental and respectful way.
The Trust’s Disciplinary Procedure provided that in the event of misconduct, the Trust might demote an employee as a sanction, being clear that conduct outside works was capable of being in breach.
The Facebook comments
Mr Smith had 45 friends on Facebook who were colleagues and he had stated on his Facebook page that he was a manager of Trafford Housing Trust, describing himself as a "full on charismatic Christian" in his profile. On 13 February 2011, he posted a link on his Facebook wall to a BBC news article, "Gay church `marriages` set to get the go-ahead", adding the comment of his own: "an equality too far." On the same day, his colleague, Ms Stavordale, posted a comment on his Facebook wall, "Does this mean you don`t approve?" to which he replied as follows:
"No, not really, I don`t understand why people have no faith and don`t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn`t impose its rules on places of faith and conscience."
The disciplinary process
Mr Smith was suspended as a result of his comments and a disciplinary investigation carried out. Eight employees including Ms Stavordale were interviewed. She had found his comments to be offensive and homophobic.
The charges against him were posting comments with the potential to offend; that could damage the reputation of the Trust and serious breaches of the Code of Conduct and Equal Opportunities policy.
At the disciplinary hearing on 8 March 2011 Mr Smith was found guilty of gross misconduct. The Trust considered that he deserved to be dismissed but it instead decided to demote him from his managerial role, resulting in a reduction in his pay of 40 per cent over a 2 year period, from nearly £35,000 to around £21,000.
In reaching its decision the Trust’s view was that of significance was that Ms Stavordale had been deeply offended; Mr Smith`s wall disclosed that he was a manager of the Trust so linking his views to the Trust; the terms of the Code of Conduct and Equal Opportunities policy had been breached and as a manager he had failed to uphold the Trust`s policies.
Mr Smith’s appeal against demotion was unsuccessful. The director hearing the appeal had regard to the extent of Ms Stavordale’s distress at the comments and the potential for damage the Trust`s reputation. The director also referred to the section of the Code of Conduct on employees not attempting to promote their political or religious views and behaving respectfully and non-judgmentally to customers and colleagues.
Mr Smith had begun working in the new role at the same time as lodging his appeal to protest the demotion. He subsequently brought a claim in the High Court for breach of contract and did not bring a claim for unfair dismissal.
Did Mr Smith’s comments amount to misconduct and had he been dismissed because of the new terms being imposed?
The High Court held that Mr Smith did not breach his employment contract when he expressed his views about gay marriage on his Facebook wall in the way he did. The court found that the Trust had not been entitled to class his conduct as misconduct that warranted demotion and that it acted in breach of contract through unilaterally demoting Mr Smith and so had effectively dismissed him from his managerial role.
The Court’s findings
Firstly the court’s view was that Mr Smith’s conduct was not capable of bringing the Trust into disrepute despite the express wording in the Code of Conduct. It was rejected that disrepute to the Trust would follow through Mr Smith stating himself to be a manager of the Trust on his wall concluding no reasonable person would think he was expressing views on the Trust’s behalf.
Secondly the court held that the obligation not to promote religious and political views did not extend to Mr Smith’s wall and that he had in fact been engaged in a Facebook conversation which could not be said to be “promoting” views. A reasonable reader could not be lead to think the worst of the Trust employing Mr Smith given the moderate expression of his views on gay marriage that were made on his personal wall during the weekend outside working hours. On the issue of freedom of expression the court was bold in stating the extent to which the Code of Conduct and Equal Opportunities Policy could be considered to apply outside of work where an employee came into contact with colleagues. The view was that it would be unreasonable to interpret it that such policies would apply in every situation as this would impose too much of a restriction on freedom of expression. Here the court therefore rejected the idea that as 45 of Mr Smith’s friends on Facebook were colleagues this created the required work related context for the policies to apply.
The court also refused to accept the argument that his views could weaken the Trust’s credibility in relation to diversity issues on the basis that encouraging diversity in recruitment would inevitably involve recruiting people with varying religious and political beliefs “some of which, however moderately expressed, may cause distress among the holders of deeply felt opposite views”.
Mr Smith’s remedy was limited to his notice period in line with damages for wrongful dismissal. The court found that Mr Smith had not waived his right to damages, noting that he protested against the contractual lawfulness of his demotion at every stage.
This is a High Court decision that will be influential in future employment law cases on social media, conduct outside of work and freedom of expression where employers are arguing a work-related context in relation to comments in social media.
Of note are the judgment’s observations on the extent it will be appropriate for employees to be disciplined for exercising their rights to freedom of expression, manifesting their religious beliefs, and the line between working and private life.