Anti gay marriage comments on Facebook were lawful
An employer who demoted an employee for expressing opposition to gay church marriages on Facebook acted unlawfully.
In 2011, Adrian Smith described himself on his Facebook page as a 'full on charismatic Christian' and listed his employer as Trafford Housing Trust (the "Trust"). At the time that he posted a BBC article about gay church marriages and commented that it was 'an equality too far', he had 201 friends on his Facebook account of which 45 were work colleagues. He entered into a debate with Miss Stavordale, a work colleague, on his Facebook page in which he said 'the state shouldn't impose its rules on places of faith and conscience.'
One of Mr Smith's Facebook friends was Trusty Bear, one of the Trust's Facebook pages. Mr Smith's comments showed up on Trusty Bear's newsfeed (as it would have done for all 201 friends and, as the Trust's barrister pointed out, it could also have shown up on all 201 of his friends' friends' newsfeeds). The Trust's Facebook administrator complained to the management of the Trust and Mr Smith was disciplined for bringing the Trust into disrepute and for a serious breach of the Trust's Code of Conduct and Policies. Mr Smith was demoted and his salary was permanently cut. He accepted this change whilst claiming to 'reserve his position'.
The High Court agreed with Mr Smith and found that the demotion was a wrongful dismissal. As Mr Smith did not bring an unfair dismissal claim in the requisite timeframe, the High Court said they could only award him minimal damages of £98. The Trust has also apologised to Mr Smith for their actions.
This case contains an interesting analysis of the extent to which an employee posting comments on his Facebook page outside of working hours remains subject to the rules of his employer. The High Court found that:
- Mr Smith's Facebook wall was 'inherently non-work related' and 'was an aspect of his social life outside work, no less than a pub, a club, a sports ground'.
- All his Facebook friends had chosen to accept his invitation to be his friends and his work colleagues had not been personally targeted by his views through, for example, by receiving a message on their work email account.
- When Mr Smith's postings appeared on his friends' friends Facebook page, the Trust's details did not show up and he was not bringing the Trust into disrepute.
- The Trust should be proud of its diversity which also means there will inevitably be opposition to different religious or political views and this 'is a necessary price to be paid for freedom of speech'.
- Mr Smith's postings were not, viewed objectively, liable to cause upset or offence and his comments were not homophobic.
Mr Smith engaged in a debate with Miss Stavordale and therefore mooted his views about gay marriages with a work colleague. The High Court found that his anti gay church marriage views were not to be criticised in this context. How might this fit with bullying and harassment of colleagues that takes place only on Facebook and only outside of working hours?
The High Court's view is to be contrasted with the decision in the case of Preece v Wetherspoon where a manager of a JD Wetherspoon pub made derogatory comments on her Facebook page about customers who had been threatening in their behaviour towards her. In that case the activities of Ms Preece had been directly linked to work and the High Court considered this justified the company's decision to terminate her employment.
Similarly, in the 2011 case of Crisp v Apple Retail, the Employment Tribunal stated that because Mr Crisp's derogatory comments about Apple could be re-posted on Facebook they did bring Apple into disrepute and that Mr Crisp had no expectation of privacy whilst on Facebook.
In Mr Smith's case, the friends of his friends could have chosen to look at his Facebook information page and seen he was a manager of the Trust. The High Court did not consider this and such considerations appear to muddy the waters.
As work and personal life continues to merge, and Generation Y in particular interact with work colleagues through social media as one of their primary means of communication, will the dichotomy between 'freedom of speech' and workplace discrimination laws naturally extend into one's personal life?
The European Court of Human Rights decided this month that a bus driver in Bradford who was a member of the BNP should not have been dismissed and that the UK courts do not adequately protect those with political beliefs. This case occurred before the religious (and philosophical belief) discrimination laws came into force and it is possible (although not certain) that the bus driver would now have protection under those laws. The Government may yet decide to protect employees with political views from unfair dismissal but they will probably first appeal this decision.
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