Employment

The recent case of Smith v Trafford Housing Trust illustrates the extent to which an employee’s posting on Facebook can impact upon their job.

Mr Smith was demoted after he had been found guilty of gross misconduct for posting comments on Facebook opposing ‘Gay Church marriages’, describing them as ‘equality too far’. The Trust believed this amounted to gross misconduct because:

  • an employee had been deeply offended;
  • Mr Smith’s Facebook wall disclosed that he was a manager of the Trust;
  • the terms of the Code of Conduct and Equal Opportunities policy had been breached; and
  • as a manager Mr Smith had failed to uphold the Trust’s policies.

Mr Smith suffered a 40% salary cut and brought a claim for breach of contract. The High Court held that Mr Smith’s demotion and resulting reduction in salary amounted to a serious and repudiatory breach of contract. He was, however, only awarded £98 in damages (he was outwith the three month time limit for bringing an unfair dismissal claim) representing his losses during his contractual notice period.

The High Court found that Mr Smith had not breached his contract of employment when he posted on Facebook. It was clear from Mr Smith’s Facebook page and the nature of his posts (about sport, food and motor racing) that he was not using it for work-related purposes. Although some of his Facebook friends were colleagues, this was not relevant. Mr Smith’s postings on gay marriage were not, when viewed objectively, judgmental, disrespectful or liable to cause upset, offence, discomfort or embarrassment. While the Court acknowledged that his comments had caused particular offence to an employee with different views, this was held to be a necessary price to be paid for freedom of speech. Mr Smith’s views were an expression of religious and political opinion alone and could not give rise to any reasonable reader thinking negatively of the Trust for having employed him.

This case is interesting as it seems to protect an employee’s right to privacy when using social media, unless the context suggests otherwise (e.g. because of the nature of the views expressed, the position of an employee (higher standards according to seniority) and the extent to which the employee’s views had been targeted towards an audience (for example, the direct emailing of work colleagues as opposed to just posting on Facebook).

It is also noteworthy as it considers the extent to which employees can post personal religious and political opinions on Facebook. Previous cases involving social media have tended to focus on comments that are more damaging to the employer or employment relationship, in terms of criticising the employer directly or bringing it into disrepute on account of being derogatory or offensive.

Julie Keir

Practice Development Lawyer at Brodies LLP
As a Practice Development Lawyer Julie is responsible for developing and maintaining Brodies Workbox, our award-winning online HR and employment law resource.
Julie Keir