In this news update we look at a recent case regarding Facebook posts which raises a number of questions: where is the line between freedom of expression and conduct in keeping with employment obligations? Does it make a difference if views are expressed in an employee’s personal cyberspace? What if colleagues or customers are part of an employee’s personal online social network?
Smith v Trafford Housing Trust
Background
Adrian Smith, a manager at Trafford Housing Trust (“the Trust”) posted comments on Facebook about the legalisation of gay marriage in churches stating it was “an equality too far”. An exchange of posts between Mr Smith and his work colleagues ensued on the topic.
The posts were made out of work time and were not visible to the general public (although they were visible to friends-of-friends who sought out Mr Smith’s profile page). However, a number of his colleagues were on his Facebook network and opposed his stance.
Like many employers, the Trust’s code of conduct included reference to social networking sites:
“Employees should not engage in activities which may bring the Trust into disrepute, either at work or outside work. This includes not engaging in any unruly or unlawful conduct where you can be identified as an employee… via any web-based media such as… Facebook”.
Disciplinary
The Trust instigated disciplinary proceedings and found that Mr Smith had breached its code of conduct and equal opportunities policy. The Trust purported that he was guilty of gross misconduct and imposed demotion to a non-managerial position, a pay cut of 40% and a final written warning as disciplinary sanctions.
Breach of contract claim
Although Mr Smith initially continued to work for the Trust in the more junior post following his demotion, Mr Smith brought breach of contract proceedings in the county court against the Trust in relation to the demotion and the reduction in pay.
The court did not uphold any of the grounds on which the Trust relied to justify a finding of breach of its code of conduct.
Personal cyberspace
The court found that the obligation not to promote religious and political views did not extend to Mr Smith’s personal Facebook wall. The court found that, even though Mr Smith’s Facebook page identified him as a manager employed by the Trust, it was clear from the other personal information on his Facebook profile page that he was not making those comments on behalf of the Trust.
No reputational damage
The court did not find that Mr Smith breached any obligation not to bring the Trust into disrepute. The court regarded his posts as a “moderate expression of his particular views… on his personal Facebook wall at a weekend out of working hours” which could not sensibly lead any reader to think the worst of the Trust for having employed him as a manager.
Dignity and respect
Significantly, the court held that Mr Smith had not failed to treat his colleagues with dignity and respect and said that frank discussion of views may cause upset or offence but this is a “necessary price to be paid for freedom of speech”.
In the circumstances, the court found that Mr Smith’s Facebook posts were not in breach of the Trust’s code of conduct and therefore demoting him and reducing his pay was a breach of contract. Mr Smith was awarded the difference between his previous salary and the lower salary following his demotion.
The damages awarded were minimal, but had Mr Smith left his job and claimed constructive unfair dismissal in an employment tribunal, the compensation could have been substantially higher.
Comment
The Smith v Trafford Housing Trust case does not mean that freedom of expression trumps employees’ obligations with regards to social networking websites. For example, in the recent case of Teggart v TeleTech UK Ltd, the Northern Ireland tribunal found an employee’s dismissal for making vulgar comments about a colleague amounting to harassment was fair in the circumstances. As in Smith v Trafford Housing Trust, the tribunal did not find that the employer’s reputation had been brought into serious disrepute. However, unlike in Smith v Trafford Housing Trust, where Mr Smith treated his colleagues with dignity and respect, the harassment of a colleague in cyberspace was sufficient to justify dismissal.
Another contrasting case is Preece v JD Wetherspoons plc where a pub manager was found to have been fairly dismissed for gross misconduct after posting negative comments about two customers. An important distinction between this case and Smith v Trafford Housing Trust was that the posts were directly related to customers and were made during working hours. Even though the posts were made in the employee’s personal cyberspace, the tribunal concluded the dismissal was justified because of the risk of damage to the business’ reputation.
In Lerwill v Aston Villa Football Club Ltd, the football club’s historian was dismissed in what was found to have been the club’s genuine belief that making negative comments online amounted to misconduct. However, in the absence of a social media policy, the employee had no forewarning of the consequences of his actions and therefore the tribunal found his dismissal to be unfair and compensation was awarded. This case highlights the importance of having a social medial policy in place.
Please click here for the hrlaw.co.uk summary of the ACAS guidance on social networking.
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