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Facebook, Social Media and Employment Law – Case Update

AN EMPLOYER was wrong to demote an employee for expressing his views on gay marriage through social media, even though his colleagues complained.

The use of Social media by employees in their personal time is causing more and more problems for employers. The case below highlights the challenges faced by businesses due to the increased use of social media.

Adrian Smith v Trafford Housing Trust


Mr Smith was employed as a Housing Manager by the Trust.


He came across an article posted on the BBC news website headed “Gay church “marriages” set to get the “go-ahead”. Mr Smith is a practising Christian and occasional lay preacher. He thought the article and his view on it may interest some of his Christian friends on Facebook. He posted a link to the BBC article on his Facebook wall page along with a comment:


 “an equality too far”.


The Claimant is friends with a number of colleagues from the Trust. One of his colleagues posted a comment on his Facebook wall :


“Does this mean you don’t approve?”


Mr Smith responded:


“no not really, I don’t understand why people who 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 and 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.”


One of Mr Smith’s colleagues, who is friends with him on Facebook, complained to the Respondent regarding this comment and as such Mr Smith was suspended from work on full pay. He was thereafter invited to a disciplinary hearing where he was told that he had been guilty of gross misconduct for which he should be dismissed. Due to his long service he was instead demoted to a non-managerial position with the Trust, with a 40 per cent reduction in his pay, phased over 12 months. Mr Smith appealed but his appeal was unsuccessful.


The Trust relied on alleged breaches of their Code of Conduct and Equal Opportunities Policy. The Trust believed that the postings were “activities which may bring the Trust into disrepute”. It was also believed that Mr Smith was promoting his religious views which were contrary to the section of the Code of Conduct dealing with relationships with customers, members of the public and colleagues. Finally it was believed that Mr Smith was failing to treat fellow employees with dignity and respect by his comments.


Mr Smith believed that his demotion and reduction in pay amounted to a breach of his contract and he sought damages in Manchester County Court.


The Court considered the Trust’s position and came to the following conclusions.


Bringing the Trust into disrepute


Mr Smith had stated briefly on his Facebook page that he was a manager of the Trust. It was however held by the court that no reasonable reader could conclude that his two postings about gay marriage in church were made on the Trust’s behalf.


The reason was because a brief mention of the identity of his employer in no way was inconsistent with the fact that his Facebook page related to non work related information and views. The court compared this with one of Mr Smith’s colleagues who had created a Facebook page called “Trusty Bear” which was the mascot for the Trust and therefore associated with the Trust’s activities.


It was held that Mr Smith merely stated as a fact that he was employed by the Trust and any reasonable reader would read it as such.


Promoting religious views among colleagues and customers


The Court considered the following passage of the Code of Conduct:


“The Trust is a non-political, non-denominational organisation and the employees should not attempt to promote their political or religious views”.


It was believed that the key word was “promote”. It was held that Mr Smith was invited to comment further on his post and as such was part of a conversation rather than a promotion of his views.


Furthermore it was held that the majority of comments on Mr Smith’s page were non-work related and therefore could not attract the prohibition against promotion of political or religious beliefs.


Also although Mr Smith’s Facebook page was not private, as friends of friends had access to it, it was held that it was a person’s choice whether to allow Mr Smith’s postings to appear and not work related. It was compared to a targeted email to colleagues expressing his views.


Mistreating fellow employees


It was said by the Trust that Mr Smith’s comments about gay marriage in church on a forum which connected him to 45 work colleagues was disrespectful and liable to upset those colleagues. Furthermore the fact that Mr Smith knew that a number of his work colleagues were Facebook friends allowed the Trust to use the Code of Conduct as there was a work related context.


It was held that Mr Smith’s use of Facebook only involved his work colleagues to the extent that they chose to be his friends but that did not change the fact that he used it for personal communication.


Furthermore it was held that Mr Smith’s views are widely held and frequently heard on TV and radio. It was believed that he was responding to an enquiry as to his views.


Taking into consideration the above factors, the court held that the Trust did not have a right to demote Mr Smith and that the demotion constituted a breach of contract by the Trust.


The outcome is in contrast with the case of Samuel Crisp v Apple Retail (UK) Limited, where the employer was entitled to dismiss over comments on Facebook. This was the subject of a previous Glasgow Law Practice blog, at:


/Latest-News/Entry/employment-law/social-media-and-employment-law-apple-unfair-dismissal-case-update.html


The Smith v Trafford  case demonstrates the dangers of an employer over-reacting to comments made on social media. It also demonstrates the importance of specific guidelines being issued by employers regarding comments made by employees on their Facebook page and the impact that may have on the employer. It is clear that any potential disciplinary action is dependant on what is detailed within the guidelines issued by the employer and also the interpretation of same.


At The Glasgow Law Practice, we advise employers and employees in relation to issues arising from Social Media use and Employment Law. For further advice please contact us on 0141 552 9193 or email  lb@theglasgowlawpractice.co.uk.