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April 16, 2014

A Post Too Far: Dismissal for a Facebook Posting Held to be in Breach of Contract

Facts

Mr Smith, a manager at Trafford Housing Trust, posted a link from a BBC news item regarding gay marriage on his Facebook wall, with the comment “an equality too far”. He later posted a second comment, setting out the grounds for his previous statement, which argued that the Bible was clear that marriage was between a man and a woman, and any attempt by the State to offer same sex marriage should not be an obligation imposed on the Church.

Following a complaint to the Trust by a work colleague, Mr Smith was found guilty of gross misconduct by the Trust and was demoted to a non-managerial position, with his pay to be reduced by 40% over the following two years. He continued to work in the more junior role and brought a breach of contract claim in the County Court.

Judgement

The Judge had sympathy with Mr Smith, finding that:

  • no reasonable reader could conclude that Mr Smith had posted on behalf of the Trust – it was clear he was posting his own personal opinions;
  • Mr Smith had moderately expressed beliefs which were a subject of constant mainstream discussion;
  • his audience were people who had chosen to become his Facebook friends.

The Judge held that although the Trust had breached its contract by demoting Mr Smith, he could only claim for wrongful dismissal resulting from the Trust’s breach. The Judge could therefore only award him £98, representing the difference between the amount he would have earned in his previous position, and the amount he had earned in the 12 weeks following his demotion. The Judge expressed his unhappiness with the result, but was unable to reach a different decision.

Comment

The analysis taken by the Judge was interesting, and perhaps in contrast to other recent cases involving Facebook. This Judge was of the view that the comments were not sufficiently connected with work and were made within a relatively private (not public) context.

Given the outcome, employers should be careful about encroaching too far into employee’s private lives, as views expressed by employees on Facebook – or other social media sites – do not necessarily fall within an employer’s disciplinary remit.

Employers should therefore have clear policies on internet usage and social media, under general law which should clearly set out what is acceptable behaviour, and what is not. At the same time, employees should be aware that any personal views they express on social media sites may be communicated further than their intended audience and could attract the (unwanted) attention of their employer.

This case also highlights the importance of bringing a claim on time in the appropriate forum. Mr Smith carried on working and did not bring an unfair dismissal (or discrimination) claim in the Employment Tribunal. Had he done so, it is likely his award would have been much higher.

©2014 Greenberg Traurig, LLP. All rights reserved.

About the Author

Trainee Solicitor

Tom Esler joined the firm as a trainee solicitor in September 2012.

+44 0 203 349 8700

About the Author

Associate

Russell Lamb has more than 10 years of experience advising on both contentious and non-contentious employment matters. Russell has particular experience in the UK Transfer of Undertakings legislation and defending Employment Tribunal discrimination claims. His industry experience includes advising clients in the areas of global insurance, management consultancy, travel, catering, construction and financial services, including a focus on investment banking

44 (0) 203 349 8708

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