Several recent Employment Tribunal decisions have considered cases where an employee’s Facebook comments have led to their dismissal. The High Court recently published its decision in Smith v Trafford Housing Trust , in which an employee stated that their disagreement with same-sex marriage on social media. The case contributes further to the debate on the divide between acceptable online conduct and gross misconduct. We discuss the case and summarise the law on ‘Facebook dismissals’ below:
Mr Smith stated on his Facebook page that he was a housing manager for the Trust. He had 201 Facebook friends, of whom 45 were fellow employees.
On 13 February 2011, Mr Smith published a link on his Facebook page to a news article on the BBC News website headed “Gay church ‘marriages’ set to get the go-ahead”. Mr Smith commented that same-sex marriage was “an equality too far.” In an online discussion with one of his colleagues, Mr Smith explained, in summary, that he did not believe that the state should require “places of faith and conscience” to host equal marriages.
One of Mr Smith’s colleagues complained about the comments. The Trust investigated, found that the comments amounted to gross misconduct and demoted Mr Smith, reducing his salary. Of particular concern to the Trust was the fact that he referred to being employed by them on his Facebook page and the effect his comments may thus have had on colleagues and stakeholders.
Mr Smith brought a claim for breach of contract in the High Court, having failed to present a claim for unfair dismissal at the Employment Tribunal within the three-month time limit.
Mr Justice Briggs in the High Court found that it “would be obvious to even the casual reader that [Mr Smith] used Facebook for personal and social rather than work-related purposes”. The judge then considered how readers would have become aware of his comments on same-sex marriage and found “no basis for the reader to make any connection between the postings and the Trust.” Looking at the comments themselves, the judge found that they were “not, viewed objectively, judgemental, disrespectful or liable to cause upset or offence,” and therefore found that posting the comments did not amount to gross misconduct and the Trust was not entitled to demote Mr Smith. He also found that demotion amounted to a wrongful dismissal, i.e. a dismissal in breach of contract.
Mr Smith was only entitled to the difference in pay between his previous role and the demoted role for his 12-week notice period. The judge did, however, comment that if Mr Smith had brought a claim for unfair dismissal in the Employment Tribunal, he may well have received “substantial compensation for the unfair way in which he was treated.” The High Court does not have power to consider unfair dismissal claims.
Social media policy
What is clear from this case and the previous tribunal cases on ‘Facebook dismissals’ is that, in order to dismiss fairly, an employer will generally require a disciplinary or social media policy that, in the words of Mr Justice Briggs, enables an employee “to ascertain from the codes and policies to which he is subjected what he is and is not permitted to do, and to understand the extent to which those obligations extend beyond the workplace into his personal or social life.” An employer seeking to dismiss without a robust policy in place may well find themselves facing an unfair dismissal claim. It also appears that without, for instance, the risk of damage to the employer’s reputation, the dismissal may well be found to be unfair.