Last autumn we presented a seminar on Making Your Business a Success, where we also looked at the legal pitfalls of social media. We highlighted cases where Employment Tribunals had no difficulty in ruling that employees did not have a right to privacy and/or freedom of expression for comments posted on social media, especially where it was necessary for an employer to protect its brand and reputation as in the case of Crisp v Apple Retail (UK) Limited. In this case an employee of Apple posted disparaging comments about his iPhone on his Facebook page and was dismissed. His dismissal was held to be fair as the Employment Tribunal did not consider the employee to have had a reasonable expectation of privacy over comments, which could very easily be forwarded on to others.
The decision in Crisp v Apple gave some comfort to employers who emphasize to staff the importance of their company’s brand and reputation and who make staff aware that activities in and out of the work place are capable of bringing their organisation into disrepute. However, in a contrasting ruling, the case of Smith v Trafford Housing Trust reveals that while technological and social advances are rapidly evolving, the law is still developing in this area.
Mr Smith, a practising Christian and occasional lay preacher, was employed as a housing manager for Trafford Housing Trust. In February 2011, Mr Smith posted a link on his Facebook page to a BBC news article entitled Gay church “marriages” set to get the go ahead together with the comment “an equality too far”. A colleague and Facebook friend of Mr Smith’s left a comment on his Facebook wall asking “Does this mean you don’t approve?” Mr Smith responded, again on his Facebook wall:
“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 shouldn’t impose its rules on places of faith and conscience.”
The comments on his Facebook page led to Mr Smith’s suspension from work and a disciplinary investigation by the Trust. Mr Smith was contractually bound by the Trust’s Code of Conduct, which had been communicated to him and agreed to by him. The Code set out the Trust’s values, including the importance of promoting a positive image of the Trust. It also stated:
“The Trust is a non-political, non-denominational organisation and employees should not attempt to promote their political or religious views.”
The Code went into detail regarding aspects of conduct stating that “Employees should not engage in any activities which may bring the Trust into disrepute, either at work or outside work,” which prohibition included making derogatory comments about the Trust, its customers, clients, partners or services on “any web-based media such as a personal blog, Facebook, YouTube or other such site.” Mr Smith was also bound by the Trust’s Equal Opportunities Policy which required employees to treat others with “dignity and respect being non-judgemental” and not to “make another person feel uncomfortable, embarrassed or upset.”
The Trust’s investigation revealed that certain employees had found Mr Smith’s comments to be “blatant homophobia”, “out of order” and “silly”. Also, because Mr Smith identified himself as being a manager of the Trust on his Facebook profile and 45 of his Facebook friends were employees of the Trust, the Trust found his comments to have “caused concern and distress to members of staff”. Mr Smith was found guilty of gross misconduct, for which the Trust was entitled to dismiss him. However, owing to his long commitment to the Trust, they instead demoted him to a role with a 40% phased reduction in salary.
Mr Smith began his new position but continued to protest his demotion. Owing to financial pressures Mr Smith did not bring a claim for unfair dismissal at an Employment Tribunal but eventually brought a claim for breach of contract at the High Court.
The High Court held that Mr Smith did not breach his employment contract by posting the comments on gay marriages and his demotion amounted to wrongful dismissal. The judge dismissed the argument that by identifying himself as an employee of the Trust, the comments posted online were capable of bringing the Trust into disrepute. No reasonable reader of Mr Smith’s Facebook wall could rationally conclude that the comments were made on the Trust’s behalf. His Facebook wall was a medium for personal or social, rather than work related, information and views. And a brief mention of the identity of his employer did not change this.
The court considered the extent to which the Code of Conduct and Equal Opportunities Policy applied outside the work place. It was held that the prohibition on the promotion of political and religious views did not, as a matter of interpretation and application, extend to Mr Smith’s Facebook. The Trust’s argument that because 45 of Mr Smith’s Facebook friends were colleagues this attracted the provision of the Code of Conduct was rejected. To interpret the prohibitions as having application to every situation outside work where one employee comes into contact with another colleague would be to impose a fetter on the employee’s freedom of speech. On an objective view, the manner and language in which Mr Smith expressed his views were not found to be judgemental, disrespectful or liable to cause discomfort or upset. His comments were widely held views broadcast on radio and television, and read in newspapers. Further, the court felt that Mr Smith was mainly responding to an enquiry as to his views and doing so in a moderate language. The High Court boldly stated that:
“The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech.”
As this was a claim for breach of contract/wrongful dismissal (and not unfair dismissal), Mr Smith’s remedy was limited to the 12 weeks’ notice period under his employment contract. Awarding Mr Smith £100 for the Trust’s breach of contract (being the difference between what he would have received under the 12 weeks’ notice period for the termination of his managerial role and the payment received in his lower paid position during that period), the judge expressed “real disquiet”. He stated:
“A conclusion that his damages are limited to less than £100 leaves the uncomfortable feeling that justice has not been done in the circumstances. All that can be said is that, had he applied in time, there is every reason to suppose that the Employment Tribunal would have been able (if thought fit) to award him substantial compensation for the unfair way in which I consider that he was treated.”
This is not to say that Facebook (or any other social media site) cannot be used as a medium for work related communication, as the judge pointed out. Indeed, there have been cases where employers have successfully defended unfair dismissal claims for comments made by employees online (Crisp v Apple; Otomewo v Carphone Warehouse Ltd). It is quite clear from these cases that with the increased use of social media, both in the workplace and private life, the distinction between the two has become a fine one for many social media users. Employees should be given sufficient information and training on the company’s policy on social media to prevent reputational damage and vicarious liability. However, as we pointed out in our seminar and as the case of Smith v Trafford serves to remind us, a staff handbook and social media policy can only assist employers in a claim for unfair or wrongful dismissal to the extent they have been enforced reasonably and proportionately.