Facebook Dismissal: Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)

The High Court holds that a Christian employee who expressed his views about gay marriage on Facebook had not committed misconduct by doing so and that in demoting him, his employer had acted in breach of contract.

On Mr Smith’s Facebook account he stated that he was a manager of Trafford Housing Trust. 45 of his Facebook friends were work colleagues. Mr Smith posted a BBC news articles entitled “Gay church ‘marriages’ set to get the go-ahead” with his own comment, “an equality too far”. One of Mr Smith’s colleagues then questioned him about this and he posted a response explaining his views.

The Trust’s policies did not allow employees to bring the Trust into disrepute or promote religious beliefs and so the Trust found him guilty of gross misconduct, demoted him from his managerial position and reduced his pay. Mr Smith appealed but was unsuccessful and worked in his new role under protest. He brought a claim for breach of contract.

The court held that Mr Smith’s Facebook post did not amount to misconduct and that the Trust had acted in breach of contract by demoting him.

Mr Smith’s Facebook posts were held not to be capable of bringing the Trust into disrepute as no reasonable person would think he was expressing views on behalf of the Trust. His posts about gay marriage were alongside posts regarding food and cars etc. Also Mr Smith expressed his views in a moderate way and outside of working hours.

The court also held that the obligation not to promote religious beliefs did not extend to Mr Smith’s Facebook postings.

Therefore the Trust was breaching contract by demoting Mr Smith, as they only had power to do so if he had committed gross misconduct.

As Mr Smith protested his demotion at every stage, he had not waived his right to damages by continuing to work for the Trust. However, his damages were limited to his notice period as he had only brought a claim for breach of contract, not unfair dismissal where his damages could have been higher.

This case supports employee’s privacy rights. The court viewed Facebook as a place for socialising, unless there is evidence to suggest otherwise. Employers should carefully consider whether behaviour actually constitutes misconduct before taking disciplinary action.