Readers may have seen the BBC report of the case of Mr Adrian Smith, who lost his managerial position with the Trafford Housing Trust and had his salary cut after commenting on his Facebook page that the prospect of conducting same-sex marriages in church was “an equality too far”. Though the comments were not visible to the general public and were posted outside work time, the Trust contended that he had broken its code of conduct by expressing religious or political views that might upset co-workers. Employment law specialist Andrew Hambler, of the University of Wolverhampton, has kindly provided the following case-note.
In Smith v Trafford Housing Trust  EWHC 3221 (Ch) the claimant, a housing manager employed by the Trust, was demoted to a non-managerial position with a 40 per cent reduction in salary for posting comments on his personal Facebook page which were critical of the prospect that same-sex marriages might be conducted in church. The Trust argued, inter alia, that posting such comments on Facebook had the potential to prejudice the reputation of the Trust and breached the staff code of conduct (by promoting religious views to colleagues and customers); and that this amounted to gross misconduct.
Significantly, Briggs J determined that although on his Facebook page Mr Smith had listed his occupation as a manager at the Trafford Housing Trust, no reasonable reader would thereby conclude that his postings were made on the Trust’s behalf. He also considered that there was no realistic damage to the reputation of the Trust by association with the comments, given that they were made by an employee in a private capacity, outside of working hours and in a moderate way. He also concluded that Mr Smith had a right to promote his religious views in his own time; this included his Facebook page because colleagues and customers had the option of whether or not to subscribe to it. To suggest that a code of conduct could be interpreted to extend so far into an employee’s private life as to fetter his religious expression outside of work would amount to an infringement of rights of freedom of expression and belief and was unsustainable. (He did, however, note at para 8 that, although the rights to freedom of expression and to manifest one’s religious beliefs were “undoubtedly relevant in the context of the interpretation of [the claimant’s] employment contract with the Trust, this is not a case in which his convention rights are sought to be enforced directly, since the Trust is not a public authority”.)
Briggs J concluded that Mr Smith had been wrongfully dismissed from his original role but, as the respondent argued, he had accepted a new, lesser role under a new contract of employment. As a result, the court was constrained in the damages that it could award to Mr Smith who (as it noted) might have been entitled to a substantial award for unfair dismissal had he not been out of time in bringing his claim before an Employment Tribunal.