There has been a notable increase in the number of employers (particularly those in the public sector for some reason) checking their employees’ social media activity. Personal Facebook pages appear to have come in for considerable scrutiny and comments which might be construed as critical or otherwise potentially damaging to the employer have resulted in disciplinary cases and, on occasion, dismissals. Sometimes such action has resulted from contributing to someone else’s page.
Against this background Smith v Trafford Housing Trust was one of the most newsworthy cases in late 2012, arising as it did from disciplinary action taken against an employee for posting comments on Facebook which were critical of the idea of gay marriages in church. The High Court found squarely that Trafford had been in breach of contract in demoting Mr Smith for those remarks, making it clear that there was no realistic chance of anyone reading those comments on his wall (which Mr Smith clearly treated as a personal social medium) as being in any way representative of his employer’s views.
The approach adopted by the High Court (Mr Smith elected to claim damages for breach of contract rather than compensation for unfair dismissal) is worthy of fairly detailed consideration, bearing in mind that Facebook is ubiquitous and its users are often straying into the publication of material which would never otherwise have seen the light of day.
On a Sunday morning Mr Smith read an article on the BBC News website entitled "Gay church ‘marriages’ set to get the go-ahead". He posted a link to the article on his Facebook wall and added the comment "an equality too far". Later that day one of his Facebook friends (who happened also to be a work colleague) replied "Does this mean that you don’t approve?". After a brief further exchange Mr Smith 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 shouldn’t impose its rules on places of faith and conscience".
As a result of his posts Mr Smith was suspended from work and faced disciplinary proceedings. It was concluded that his actions were sufficient to justify dismissal for gross misconduct but the employer decided instead to demote him with a phased in 40% pay cut. He appealed, unsuccessfully save that the phasing-in of the pay cut was extended.
The Trust’s Code of Conduct included the following:
Employees should not engage in any activities which may bring the Trust into disrepute, either at work or outside work. This includes not engaging in any unruly or unlawful conduct where you are or can be identified as an employee, making derogatory comment about the Trust, its customers, clients or partners or services, in person, in writing or via any web-based media such as a personal blog, Facebook, YouTube or other such site.
The Court also considered it necessary in its deliberations to decide just what Facebook is:
Facebook is a widely used free social networking website which allows registered users to create profiles, upload photographs and videos, send messages and keep in touch with friends, family and colleagues…
Facebook constitutes a communications medium between an account holder and an identified group of other persons known as “friends”. To become an account holder’s friend, a person must either apply and be permitted by the account holder, or be invited by the account holder and consent. For brevity I shall refer to the account holder as a member, but without thereby intending to attribute any particular meaning to that word.
Each member’s friends have access to the member’s pages. One of those is the member’s profile, which contains as much (or as little) as the member wishes to provide under the headings education, work, philosophy (including religious and political views), arts and entertainment, activities and interests, basic information, relationship status and gender. More important for present purposes is the member’s “wall” page, upon which the member may place comments, items of interest and nutshell descriptions of recent activities. Friends may also post items on the member’s wall. The member also has a newsfeed page, upon which automatically appear the most recent postings of the member’s friends. Each page conspicuously displays a photograph of the member’s face, and a smaller version of it appears as the icon for each posting by the member.
Members may widen the class of those enabled to visit their pages by engaging a “friends of friends” option so that any one of the several friends of the member’s friends has the same access to the member’s page as do the friends. In February 2011 Mr Smith’s wall was accessible both by friends and by friends of friends. It is in theory possible for a member to compile a complete list of those friends of friends with access to the member’s wall, since the identity of any particular member’s friends is accessible by anyone with access to the member’s pages. All friends are themselves members. In practice however, in particular in relation to a member like Mr Smith, with 201 friends in February 2011, an entry on his wall would be accessible by a large section of the Facebook community about whom he would know nothing at all.
It is evident from the narrative in the judgment that the Trust spent a great deal of time, effort and no doubt considerable expense, in seeking to justify its actions. However, it was not open to the Trust to form its own binding decisions concerning what did or did not constitute misconduct, based on its own policies and procedures. Rather, the allegations needed to be considered objectively. On that basis Mr Justice Briggs concluded: "I do not consider that any reasonable reader of Mr Smith’s 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". Identifying his employer within his CV was not inconsistent with him using Facebook to express his personal views. Further, looking at the page as a whole, it would be obvious to even a casual reader that the Facebook page was used for personal rather work-related matters. It followed that Mr Smith’s posts did not and could not bring the Trust into disrepute.
Although the Trust prohibited the promotion of political or religious beliefs and notwithstanding that 45 of his work colleagues were Facebook friends, the nature of the Facebook wall was not, ultimately, work-related so the ban did not apply. Further, it made no difference that his posts would appear on the newsfeed pages of his Facebook friends.
As for the potential of statements to upset work colleagues Mr Justice Briggs was very clear:
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. To construe this provision as having application to every situation outside work where an employee comes into contact with one or more work colleagues would be to impose a fetter on the employee’s freedom of speech in circumstances beyond those to which a reasonable reader of the Code and Policy would think they applied. On any view their main application is to circumstances where the employee is working for the Trust. For the reasons already given, Mr Smith’s use of his Facebook involved his work colleagues only to the extent that they sought his views by becoming his Facebook friends, and that did not detract to any significant extent from the essentially personal and social nature of his use of it as a medium for communication.
Ironically, because Mr Smith opted to accept the demoted post, and make a claim for damages for breach of contract, rather than resign and claim constructive dismissal, he recovered only a trivial amount of compensation, as the loss he could recover was limited to the difference of earnings for his notice period. However, had he resigned and claimed unfair constructive dismissal, he could potentially have recovered a significant compensatory award. Mr Justice Briggs expressed concern about this outcome and made clear that Mr Smith could have expected to receive substantial compensation had the circumstances of the case permitted.
It seems there are some lessons to be learned:
- – While employers can legitimately seek to treat social media postings by employees as disciplinary matters if they would genuinely damage their interests, there is a limit to the extent that they can realistically seek to control employee use of social media outside working hours.
- – Nevertheless, employees should perhaps think twice about identifying their employer on their profile (and indeed which of their colleagues’ friend requests they accept).
- – If you as an employee are faced with being demoted for a disciplinary offence, take advice as to whether your employer can do this under the terms of your contract; if he cannot, you might be better off leaving than accepting the lesser job.
- – Employers should think very carefully before embarking on disciplinary proceedings against employees relating to their participation in social media unless there is clear evidence confirming a direct connection with the employer and tangible damage caused to the employer.