High Court Judge ‘unfriends’ Facebook dismissal

By March 17, 2015Disciplinary

A Housing Association, the Trafford Housing Trust, demoted an employee, Mr Smith, a practising Christian, for ‘gross misconduct’ after he posted comments on his private Facebook account about his opposition to gay marriage.

Mr Smith sued in the High Court for Wrongful Dismissal and won, although he only got £100 compensation, since he was demoted rather than sacked outright and he only lost a small amount of pay. The case gives useful guidance on whether it is appropriate to take disciplinary action against employees for comments on social networking sites.

The first point is that, unusually, the case was brought in the High Court, and Mr Smith did not claim Unfair Dismissal in an Employment Tribunal, he was apparently unable to afford to at the time. If Mr Smith had done so, he would almost certainly have won a lot more than the damages of around £100, so the Trust had a lucky escape.

After a disciplinary process, Mr Smith was demoted for gross misconduct by making his comments on Facebook, which were visible to around 45 work colleagues, and he also mentioned his job and employer in his profile.

At court, the Trust had to show that Mr Smith’s comments – which, broadly, were that requiring Churches to hold ‘gay marriages’ would be “an equality too far” and a follow-up comment – were a breach of its Equal Opportunities policy and Code of Conduct. The Trust alleged that Mr Smith had brought the Trust into disrepute, and had breached the policies and code of conduct in other ways.

In a stinging rebuke to the Trust, the judge did not consider that any reasonable reader of the postings on Mr Smith’s Facebook page could rationally conclude that the posts were relevant to his work, and it was obvious that Mr Smith’s postings were simply about his point of view. The postings could not sensibly have brought the Trust into disrepute as Mr Smith’s employer, and the one employee who saw his posts on Facebook and had objections to them as homophobic, was not ‘objectively reasonable’.

The judge did indicate that if an employee were to post comments about a colleague, or indeed work, on Facebook, that could be grounds for disciplinary action. The judge pointed to the importance of interpreting workplace policies in the proper context of the situation for which they are intended.

From this case, employers should note the following:

1. Policies and procedures will be viewed in Court or Tribunal from an ‘objective’ viewpoint, and individual reactions are unlikely to be as important as an impartial observer’s view.

2. Employees’ private comments are normally just that, private, unless there is a direct impact on work.

3. Over-sensitive reactions to contentious comments should not drive disciplinary action.

4. Comments about work or work colleagues can be investigated and disciplinary action can be taken, but there needs to be a demonstrable impact on work or customers.

If you have any questions, or would like us to check on your Social Media policies then give us a call on: 020 7870 1090.