17 December 2012

Facebook dismissal

Employers are finding it increasingly difficult to balance the freedom of expression of their employees through Facebook and the protection of their business reputation. This issue was dealt with by the recent High Court in Smith v Trafford Housing Trust.

Background
Mr Smith, a manager within the Trust, expressed his personal opinions on 'gay marriages' outside working hours and in a forum in which he used solely for personal and social use. His Facebook wall indicated that he worked for the Trust, and out of his 201 friends, 45 were employees of the Trust.

Mr Smith was a Christian and his views on 'gay marriage' reflected his religious background. The language he used was not abusive neither did it intend to incite or provoke. He argued that they were made to instigate discussion.

The Trust commenced disciplinary action against Mr Smith on the grounds that his comments amounted to being: 

1. Bringing them into disrepute, particularly as they had been accredited to working with homosexual and transsexual individuals.  
2. Posting comments on Facebook which had the potential to cause offence.  
3. Breach of their code of conduct and equality policies.  
4. Failing to take managerial responsibility.

The Trust had the relevant social media policies in place. The matter was investigated and at least one of the employees found Mr Smith's comments offensive.

During the disciplinary action Mr Smith was informed that all four accounts were upheld and his behaviour was so serious that it warranted dismissal. However given his loyal service, the sanction imposed would be a demotion with a reduction of 40% in his salary phased over 12 months.

Mr Smith appealed and at appeal the original sanction was upheld save that the salary reduction would be phased in over 2 years.

Mr Smith continued working with the Trust in his new role under protest and brought proceedings in the High Court for breach of contract.

The Trust alleged that they had effectively dismissed Mr Smith by giving him the appropriate notice and reengaged him on a new contract, by virtue of Mr Smith continuing to work under the new role, he had waivered his right to damages.

High Court decision
The High Court held that the Trust had in fact breached Mr Smith's contract by demoting him, however they concluded this was a case of wrongful dismissal as opposed to unfair dismissal, therefore damages were limited to £98 the difference between the old and new salary during the 12 week notice period.

Fortunately for the Trust, Mr Smith had failed to bring an employment tribunal claim for unfair dismissal within the prescribed time limits.

In making the finding the court held: 

1. No reasonable person reading Mr Smith's Facebook page would have concluded that his comments in respect of 'gay marriages' were posted on the Trust's behalf. This was based on reading the posts as a whole.  
2. Encouraging diversity in the workforce inevitably involves employing persons with widely different religious and political beliefs. Even modest views may cause some employees distress or offence. Mr Smith's moderate expression of his religious views on a social forum would not lead a reasonable person reading his posts to think the worst of the Trust for having employed him as a manger.  
3. Facebook has not acquired a sufficiently work-related context in this case to attract the application of the employer's disciplinary policies. The court distinguished this case from one of a targeted e-mail sent to a work colleague. Further the Court noted that it was sufficiently clear from Mr Smith's Facebook page that his entries were not on behalf of the Trust, particularly when compared with the official Trust Facebook page.  
4. Mr Smith's postings when viewed objectively were not disrespectful or liable to cause upset, offence, discomfort or embarrassment.

Conclusion
Employers should always make sure that they investigate any allegations in respect to misconduct through Facebook very carefully before commencing and concluding disciplinary proceedings. In this case the Trust had a narrow escape from liability of substantial compensation due to the employee's failure to bring his claim in the correct court; other employers are unlikely to be as fortunate.