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Facebook posting and demotion – English High Court rules in favour of Employee but expresses “real disquiet” about the financial award

The recent English decision of Mr Adrian Smith  v Trafford Housing Trust [2012 EWHC 3221 (Ch) delivered by Justice Briggs in November 2012 sheds further light on the explosion of social media and how it impacts on the workplace. This case is one to watch as it concerns a breach of contract action, which the Claimant won, but unfortunately the damages awarded were minimal for the reasons highlighted below. The case also deals with the various issues concerning rights to privacy and freedom of expression and the ever expansive role social media is playing in the workplace.BackgroundIn February 2011 the Claimant in this case, a practising Christian and occasional lay preacher, read an article on the BBC news website headed “Gay church “marriages” set to get the go-ahead”. On the same date, the Claimant posted a link to the article on his Facebook page with the comment “an equality too far”. Later that day, a colleague who was also employed by the Defendant posted a comment entitled “Does this mean you don’t approve?”. On the following day the Claimant posted “no, not really, I don’t understand why people who have no faith and don’t believe in christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldnt impose its rules of faith and conscience”.A complaint was subsequently made by one of the Claimant’s work colleagues who had seen the relevant postings on the news feed page of a Facebook site which he administered with the Defendant’s approval called “Trusty Bear”. For making the two comments the Claimant was suspended from work, on full pay, on 17th February, made the subject of a disciplinary investigation and then disciplinary proceedings leading to a hearing on 8th March, at the end of which he was told that he had been guilty of gross misconduct for which he deserved to be dismissed. Due to the Claimant’s long service, he was informed that he was to be demoted with immediate effect to a non managerial position with the Defendant, with a consequential 40% reduction in his pay over 12 months. The Claimant appealed the decision, for which the substance in essence was dismissed, but which allowed the extension of the phasing in of salary reduction from one to two years. The Claimant alleged that it was a breach of contract for the Defendant to demote him and substantially reduce his pay when he was not guilty of any misconduct.The Defendant alleged that by making the two postings on Facebook which identified the Claimant as one of their managers, he committed breaches of the Defendants code of conduct for its employees and acted contrary to its equal opportunities policy. Alternatively the Defendant submitted that if it was a breach of contract to demote him, the Claimant waived the breach by taking up his non managerial post and continuing to work. It also provided that its liability for damages was limited to the difference between his original and reduced pay for his twelve week notice period.Key IssuesThe Court determined that there were three main issues or groups of issues

  1. The issue as to interpretation and application of the employment contract between the parties and application of the Defendant’s code of conduct and equal opportunities policy to the Claimant’s use of his Facebook account;
  2. Whether, if applicable, the code of conduct or equal opportunities policy were contravened by the Claimant making the two postings on his Facebook account;
  3. The measure of damages if any, as a result of the breach of contract by the Defendant in demoting the Claimant.

The Court considered in detail the Claimant’s contract of employment and the Defendant’s code of conduct applicable in the workplace. The Court also considered the Claimant’s Facebook page under his profile section which listed his title as “Manager Housing” at the Defendant along with the comment “what can I say-its a job and it pays the bills”. Under religious views the Claimant posted “full on charismatic christian”Breach of ContractThe Court stated that the Defendant did not have a general right to “demote” the Claimant by assigning him to a more junior or non managerial role. It became common ground between both counsel in the case that the Claimant’s demotion was a breach of contract unless it could be shown that his Facebook postings amounted to misconduct.The Court noted that it was an express term of the passage in the Code of Conduct about bringing the Trust into disrepute that such disrepute extended to conduct at or outside work, to unlawful or unruly conduct while identifiable as an employee of the trust and to making derogatory comments about the trust, its customers,clients, partners or services by the use (among other things) of Facebook. Justice Briggs noted “…..I do not consider that any reasonable reader of Mr Smiths Facebook wall page could rationally conclude that his two postings about gay marriage in church were made in any relevant sense on the Trust’s behalf”. He further commented “….I cannot envisage how his moderate expression of his particular views about gay marriage in a church, on his personal Facebook wall at a weekend out of working hours, could sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager”. Justice Briggs concluded that the Claimant’s postings about gay marriage in church did not nor could not bring the Defendant into disrepute.The Court then considered the issue of promoting religious views amongst colleagues and customers. Justice Briggs asked the question whether “…….Mr Smith’s Facebook wall had by February 2011 acquired a sufficiently work related context to attract the prohibition against the promotion of political or religious beliefs, because 45 of his work colleagues had become his Facebook friends”. He concluded that it had not as firstly the Claimant’s Facebook wall was “inherently work related“, secondly although the Claimant’s Facebook wall was not purely private, it was not a medium by which the Claimant could thrust his views upon his work colleagues. Finally Justice Briggs noted that it was the Claimant’s colleagues choice whether they wished to become his friends and that “….he was in principle free to express his religious and political views on his Facebook, provided he acted lawfully, and it was for the recipients to choose whether or not to receive them”.The Court also considered the issue of mistreating fellow employees, as prohibited under the Defendant’s Code of Conduct and Equal Opportunities Policy. Justice Briggs considered whether the Claimant had engaged in any conduct which “may make another person feel uncomfortable, embarrassed or upset” and stated “……the frank but lawful expression of religious or political views may frequently cause a degree of upset, ane ven offence, to those with deeply held contrary views, even where there is none intended by the speaker. This is a necessary price to be paid for freedom of speech”…..ConclusionThe Court concluded that the Defendant did not have the right to demote the Claimant by reason of his Facebook postings and that the demotion imposed by way of purported disciplinary sanction constituted a breach of contract by the Defendant. Justice Briggs also concluded that the Claimant’s demotion, in breach of his contract of employment, amounted to a wrongful dismissal (the decision goes into detail on how this conclusion was reached).The Court concluded that the correct measure of damages was the difference between the Claimant’s contractual salary and the amount duly paid to him following the assumption of the new reduced role. The Court noted this was a “very modest sum” and ” less than 100 pounds”.Justice Briggs expressed “a real disquiet about the financial outcome of this case” which “left an uncomfortable feeling that justice has not been done in the circumstances“. The Judge added that if the Claimant had commenced proceedings for unfair dismissal, he could have been awarded substantial compensation for the way he was treated but noted that “financial stringency made it practically impossible” for the Claimant to do so. The Court also noted that there was little prospect of the Claimant being reinstated to his original role.Although a UK decision, it is non doubt of persuasive authority in Ireland. Employers and employees alike……watch this space!!!

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