The recent case of Smith v Trafford Housing Trust ("THT") has provided some welcome relief to employees faced with disciplinary action or dismissal arising from their posts on social media sites such as Facebook.
Traditionally, the trend in social media cases where an employee is known to work for a certain employer or where the employer is named in the employee’s social media bio (such as the Facebook biography page) has been that any posts which cause distress to fellow colleagues or bring the employer into disrepute could in turn lead to potentially justifiable disciplinary or dismissal proceedings. However, the Smith case has reminded employers to think carefully before they act in such situations.
Mr Smith commented on a news article about "gay marriage to get the go ahead" by posting an opinion on his Facebook page that this was "an equality too far". The posting was then seen by his employer and colleagues and resulted in Mr Smith being found guilty of misconduct and being demoted with a 40% reduction in salary.
As a result, Mr Smith brought a claim in the High Court for breach of contract as he was out of time to raise a claim in an Employment Tribunal. The High Court found that although Mr Smith did identify his employers on his Facebook bio page, his comments were made in a purely personal capacity and any observer could clearly see that they were not made on behalf of his employer. Further, it was clear from his previous posts that his Facebook account was for personal use only and was not intended to be an extension of his work with THT. These conclusions are a complete reversal of previous Tribunal findings relating to social media.
In response to THT’s argument that Mr Smith’s comments would offend or cause distress to colleagues and customers, the High Court reminded the employer that, due to diversity in the workplace it would be extremely difficult to avoid conflicts in political and religious views held by colleagues. As long as such views had not been expressed in an offensive way, this was a necessary price to be paid (in the High Court’s view) for freedom of speech.
Whilst this case represents somewhat of a departure from previous case law, it is to be noted that each case would be judged on its own facts and the Smith case does not provide a carte blanche for employees to post harmful or discriminatory comments on their social media pages without the risk of consequences.
It is a further reminder to employers to have in place a carefully drafted social media policy which can be referred to by all employees.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.