Court Issues Guidance on Disciplinary Action for Facebook Postings

An employee who posted views about gay marriage on his Facebook page was not guilty of misconduct.  His demotion therefore amounted to a breach of contract by his employer.  The Court issued useful guidance on the circumstances in which an employee might be disciplined in connection with Facebook postings.

In Smith v Trafford Housing Trust, S posted a link to a BBC news item about gay marriage on his Facebook page headed “Gay church marriages set to get the go-ahead.”  He added the comment: “an equality too far.”  S’s Facebook profile indicated that he was employed by the Trust as a manager.   He had 201 Facebook friends, of whom 45 were work colleagues.  In response to a question posted by a colleague, he said he disapproved of gay marriage, that the Bible was clear that marriage is for men and women and that if the state wanted to offer civil marriage to same sex partners then that was up to the state.

S was suspended from work and following a disciplinary hearing he was found guilty of gross misconduct, for which he deserved to be dismissed.  However, due to his long service he was instead demoted with a 40% reduction in pay, to be phased in over a two year period.   His appeal was rejected.  

S brought High Court proceedings for breach of contract, arguing that his demotion was in breach of contract.  S’s contract provided that he could be demoted if he was guilty of misconduct, which in this context meant if he had breached company rules, including the Code of Conduct and Equal Opportunities Policy.  The Trust argued that in breach of these rules S had brought the Trust into disrepute, had attempted to promote his political or religious views and had failed to treat fellow employees with dignity and respect.

The High Court found that S was not guilty of misconduct and the Trust had therefore acted in breach of contract by demoting him.  

S had not brought the Trust into disrepute.  A reasonable reader would not conclude that his comments had been made on the Trust’s behalf.  The fact that his Facebook profile identified him as a manager at the Trust did not change this.   Viewing S’s Facebook wall as a whole, it was obvious that he used Facebook for personal and social, rather than work-related purposes.   In addition, no reasonable person would think any the worse of the Trust for having employed S as a manager, simply due to his views, expressed moderately on his Facebook wall outside of working hours.

The Trust’s rules would not be understood by a reasonable managerial employee to lay down any rule about how he should behave outside work or the work context, even though they expressly extended to conduct outside work.  The rules contained a range of provisions with widely differing application outside the workplace and in the court’s view the prohibition on promoting political or religious beliefs was aimed at the work-related end of the spectrum.  The Court considered whether S’s Facebook activities had acquired a sufficiently work-related context to be covered by the Rules but concluded they had not.  The fact that some of his Facebook friends were work colleagues made no difference.  His Facebook page was clearly non-work related – it was used to express his personal views about matters which had nothing to do with work and was an aspect of his social life outside of work.  In any event, nothing S had posted amounted to promotion of political or religious views.

As regards the rules on treating fellow employees with dignity and respect, neither the postings themselves nor the manner in which they were expressed were, viewed objectively, judgmental, disrespectful or liable to cause upset or offence and were not therefore in breach of the rules. 

The Court’s analysis of the extent to which Facebook activities are covered by employers’ policies dealing with conduct outside of work will be of interest to employers.   Facebook activities will primarily be viewed as part of an employee’s personal life and will only be covered by disciplinary rules dealing with conduct outside of work if there is a sufficiently work-related context to them.  The fact that an employee’s Facebook profile identifies who they work for and they have colleagues as Facebook friends is unlikely to be sufficient.