Employees' freedom of expression on Facebook

The recent case of Adrian smith -v- Trafford Housing Trust [2012] EWHC 3221(Ch) concerned the interesting issue of an employer disciplining an employee for remarks published on the website Facebook.

The Claimant, Adrian smith, a practising Christian and lay preacher, worked as a housing manager at the Defendant Housing Trust. Mr smith posted two comments on his personal Facebook page, one of which described gay marriage as 'an equality too far'. A number of colleagues were 'Facebook friends' with Mr smith and the comment eventually came to his employer's attention.

The Trust argued that (1) the activities of Mr smith (i.e. the postings) might bring it into disrepute contrary to its Code of Conduct, (2) that Mr smith was promoting his religious views, again contrary to its Code of Conduct, and (3) that Mr smith was failing to treat fellow employees with dignity and respect by engaging in conduct which might make another person feel uncomfortable, embarrassed or upset, contrary to the Trust's Equal Opportunities Policy and the Code of Conduct.

The Trust suspended Mr smith and, after a disciplinary hearing, found that he was guilty of gross misconduct. The Trust indicated to Mr smith that he would have normally been dismissed, but that because of his 'long record of loyal service' that he would be demoted to a non-managerial position and subject to a 40% salary cut.

Mr smith sued for wrongful dismissal on the basis that his demotion and salary cut was a repudiatory breach of contract. Mr Justice Briggs agreed, finding that the comments made by Mr smith were not in breach of the Code of Conduct or Equal Opportunities Policy. Mr smith had made them in a personal capacity and not whilst at work. No reasonable reader of his Facebook page could rationally conclude that they were made on the Trust's behalf. It was further held that the right of individuals to freedom of expression and freedom of belief, taken together, meant that they were generally entitled to promote their religious or political beliefs, as long as they did so lawfully. In any event, Briggs J held thatMr smith's postings were not judgemental, disrespectful or liable to cause upset or offence.

Unfortunately for Mr smith, there was little justice in the remedy he obtained. The damages awarded for breach of contract were under £100, because they had to be based on the amount Mr smith would have received had the correct notice period been given by the Trust. Briggs J commented on the unfairness of the outcome, but explained that it was something which the court was unable to alleviate by an award of substantial damages.