At an average of 3000 tweets per second, never before have so many conversations been instantly captured in one public space. Add to that the constant flow of communications on Facebook, LinkedIn and a host of other sites, and that’s a lot of chatter happening at the same time. That’s not a problem for 99.99% of the content where even the strongest of views are often tolerated. But just occasionally someone says something that - in the view of others - oversteps the mark.
In Smith v Trafford Housing Trust, the Trust took the view that comments posted on Facebook by its employee, Adrian Smith, regarding his opposition to gay marriage breached its code of conduct and equal opportunities policy as they offended colleagues and brought the Trust into disrepute. As a result, Smith lost his managerial position and had his salary cut by 40%. He brought a claim in the High Court for breach of contract. The key question before the Court was whether Smith’s posting constituted misconduct serious enough to justify demotion.
The High Court held that it did not and, consequently, that the Trust was in breach of contract by unilaterally imposing the demotion and pay cut. In reaching its decision, the Court found the following to be significant:
- The comments did not bring the Trust into disrepute. Smith had made the comments on his personal Facebook page. The page was not work related and having 45 work colleagues as 'friends' did not change that. Although Smith identified himself as a manager of the Trust on his page, no reasonable person would think that he was expressing the Trust’s views.
- The comments were made by Smith on his personal page, outside of working hours at the weekend. A code of conduct restricting an employee’s freedom to express their beliefs does not extend into every aspect of an employee’s personal or social life outside of work (even where the code purports to do so).
- Smith’s comments were available for all of his Facebook friends to see; he had not targeted certain individuals. His Facebook friends had to accept his online friendship and could choose whether to receive his posts.
- Smith had expressed his personal view on a particular topic – gay marriage – and those views were shared by others in society and aired in the media. He had not posted comments that were offensive or disrespectful and, significantly, he had been responding to a query on this topic and did so in a moderate manner.
The Trust as a quasi-public sector organisation may have had a heightened sensitivity to equal opportunity issues. However, in this case, its judgment was flawed.
Although the circumstances in which misconduct arises are ever-changing, particularly with the expansion of social media and increased use of technology, the key principles for employers remain the same:
- Have clear policies in place. Make it clear to employees what will be unacceptable behavior and differentiate between those who are expressing a (at times perhaps unpopular) view with those who are damaging the business or its customers’ or employees’ reputation
- Act reasonably in enforcing those policies. Try to balance the right of an individual to express their view with behavior that is or is likely to be considered offensive or damaging
- Deal with each case on its particular facts
With a diverse workforce come diverse views and opinions. Far from trying to censor or influence those views, employers should encourage debate in a manner which is respectful to others. As the High Court noted, some people may be upset with other people’s opinion on a particular topic. However, that is a consequence of the right to free speech.
Ann Bevitt is an employment partner, and Caroline Stakim, an employment associate, at law firm Morrison & Foerster