Misconduct? Religious employee’s comments on Facebook

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Posted in:HR and Employment|November 27, 2012 | Join the mailing list

In the recent case of Smith v Trafford Housing Trust [2012], the High Court considered whether a Christian employee who had made comments about gay marriage on Facebook had committed misconduct. It also considered whether the employer had
acted in breach of contract when it demoted the employee for making such comments.

At the relevant time, Mr Smith was employed by the Trafford Housing Trust as a Housing Manager. In response to a BBC news story, Mr Smith made comments on his Facebook page about his opposition to gay marriage ceremonies being permitted in
churches. Mr Smith’s comments about gay marriage appeared among miscellaneous entries of a purely social nature about sport, food, motorcycles and cars. One of Mr Smith’s colleagues and a "friend" on Facebook was upset by his comments about gay marriage, describing
them as, "offensive and blatantly homophobic".

As a result of his comments on Facebook, Mr Smith was suspended and subjected to a disciplinary investigation and later found guilty of gross misconduct. The Trust demoted him and imposed a pay reduction. Mr Smith did not pursue a claim for
unfair dismissal, but rather a claim for breach of contract against his employer.

The Trust claimed that Mr Smith’s comments had the potential to cause offence, could damage the Trust’s reputation and were in breach of the Trust’s code of conduct and equal opportunities policy, which formed part of Mr Smith’s contract
of employment.

The High Court held that Mr Smith did not breach his employment contract when he expressed his views about gay marriage on Facebook. The Judge did not think that any reasonable reader of the postings would think that they were made on behalf
of the Trust or assume that they represented the Trust’s views. Further, the Court held that the obligation imposed on Mr Smith under the Trust’s code of conduct not to promote religious and political views did not extend to Mr Smith’s Facebook wall and that,
actually, Mr Smith had not been promoting his beliefs. Rather, he had been explaining his viewpoint, in response to a question from a colleague.

In all the circumstances, Mr Smith had not committed any misconduct and had not breached his contract of employment and, therefore, the Trust had no right to discipline him. Whilst the Court acknowledged that Mr Smith’s 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.

Alison Loveday of Berg comments: "This case serves as a good reminder about the importance of ensuring every business has clear policies and procedures in place governing employees’ use of social media. Any policy or procedure should make
clear the extent to which conduct outside the workplace will be regulated by the employer. However, this case suggests that comments made on personal social media profiles will not easily be presumed to have been made in a work-related context and therefore
employers would be well advised not to "over-react" to comments which they disagree with.

Whilst this is a High Court decision, it is likely to be influential in future employment law cases on conduct outside work, social media and freedom of expression."

To discuss how we can provide further advice in connection with these issues, please contact Nigel Crebbin, Partner in our Employment Team by email to
or alternatively you can call Nigel on 0161 833 9211.

The information and opinions contained in this article are not intended to be comprehensive or to provide legal advice. No responsibility for this article’s accuracy or correctness is assumed by Berg or any of its partners or employees. Professional
legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this article.

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