The private and the personal in Smith v Trafford Housing Trust

Adrian Smith, a manager at Trafford Housing Trust, was demoted for making comments on Facebook opposing gay marriage. On 16 November, Mr Justice Briggs in Smith v Trafford Housing Trust [2012] EWHC 3221 held that Mr Smith was demoted in breach of contract, but awarded him less than £100 in compensation.

On his Facebook page Adrian Smith posted a link to a BBC news item about gay marriage with the comment “an equality too far” underneath. After two comments from work colleagues questioning his position, he posted a second comment “…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 it’s rules on places of faith and conscience.”

His employers commenced disciplinary proceedings, and decided Mr Smith’s actions amounted to gross misconduct. However, because of his 19-year service, they demoted rather than dismissed him. An appeal by Mr Smith resulted only in his 40 per cent pay reduction for his new position being gradually reduced over two years.

Mr Smith claimed for breach of contract before the High Court. It was common ground that unless his Facebook postings amounted to misconduct his demotion was a breach of contract.

Misconduct?

The trust argued Mr Smith committed gross misconduct, based on various breaches of the Code of Conduct and Equal Opportunities Policy.

1. Bringing the Trust into disrepute

Mr Smith’s Facebook page identified him as a manager at the trust, and the trust argued readers might think his views on gay marriage reflected the views of the trust, and might distress readers, both of which could bring the trust into disrepute. The judge dismissed this argument, concluding no reasonable reader would consider Mr Smith’s Facebook page to be anything other than a personal web page. Mr Smith’s identification of his employment was in the context of other personal information, such as his school, and his opinions on gay marriage, appeared alongside comments about football and cars. He held the postings could not be mistaken for the views of the trust, or bring them?into disrepute.

2. Promoting his religious and political views?Around 45 of Mr Smith’s Facebook friends were trust employees, which the trust argued created a work related context to his Facebook postings, and required him to abide by workplace rules. While accepting parts of the code applied outside of work, the judge held others parts clearly did not. Because of its interference with the right to freedom of expression and belief the prohibition on promoting religious and political views was “very much at the work-related end of this spectrum”.

Having work colleagues as Facebook friends did not make the situation sufficiently work related to attract this prohibition because:

(i) The Facebook wall was inherently non-work related;

(ii) Although not strictly private, it was best described as a virtual meeting place rather than a means by which Mr Smith thrusted his views upon his colleagues;

(iii) Most importantly, Mr Smith’s colleagues chose to become his Facebook friend, and therefore chose to receive his opinions.

Briggs J also commented that the prohibition in any case only extended to the promotion of beliefs, and Mr Smith’s comments were more sensibly described as a discussion of beliefs, which was not prohibited.

3. Failing to treat fellow employees with dignity and respect, and engaging in conduct which might make his colleagues uncomfortable or upset.

The trust argued Mr Smith’s comments were judgmental, and liable to make his colleagues uncomfortable, relying on one colleague describing the comments as “blatantly homophobic” and stating they had upset her. However the judge concluded Mr Smith’s comments, which were expressed moderately, and were readily available in the mainstream media, could not be viewed objectively in this way.

It followed that as Mr Smith had not committed any misconduct the Trust did not have the right to demote him.

Relying on previous case law, the judge held an employee continuing to work for an employer in a different post and for a reduced salary, even if under protest, could not be held to be affirming the original contract. It followed that Mr Smith’s demotion amounted in law to ?a wrongful dismissal.

‘Real disquiet’

The trust’s argued Mr Smith had waived any breach of his contract, but Briggs J rejected this because he had protested the breach at every stage.

The orthodox position is that damages for wrongful dismissal are limited to financial loss during the notice period. Mr Smith challenged this, relying upon Durham Tees Valley Airport Ltd v BMI Baby Ltd [2010] EWCA Civ 485 where the Court of Appeal held in assessing damages for a repudiatory breach by an airline of a fixed term contract for the use of an airport, they had to conduct an inquiry as to how the contract would have been performed if it had not been repudiated.

Rejecting entirely this analogy, Briggs J held the cases were completely different. First, the BMI case was about a contract specifying a single method of performance, but giving the party in breach discretion as to how it was to be performed. By contrast an employment contract gave the employer a free choice to its duration, subject only to giving the requisite contractual notice. Damages in such a case should therefore still be determined by reference to an assumption the party in breach would have done the bare minimum required of him under the contract. Second, any other result would offend against the Johnson exclusion principle.

It followed that the correct measure of damages was the difference between Mr Smith’s contractual salary and the amount actually paid to him in his first 12 weeks in his new role. This amounted to £98. Briggs J stated he had “real disquiet” about this, and ?a “feeling that justice has not been done”.

The trust had previously made a Part 36 offer of £1,000, however the judge decided each party should pay their own costs. Although formally this was a breach of contract claim, as the case was really about Mr Smith’s right to free speech and an unjustified finding of gross misconduct, it was reasonable for him to take this issue to trial, particularly in view of his continuing employment at the trust. However, it would also be unjust for the trust to pay Mr Smith’s costs because they should not i) be deprived of their Part 36 protection; ii) pay for the consequences of Mr Smith’s failure to bring proceedings before an employment tribunal.

Not discrimination

This case does not make new law, but touches on a number of important areas. There is an increasing number of employment law disputes concerning the use of Facebook and similar social media. Although these cases are always very fact dependent, Briggs J essentially held that while workplace rules can restrict the use of social media outside work, the starting point needs to be that freedom of expression applies.

This was not a discrimination claim, and so despite the widespread reporting of the subject matter of the Facebook postings there was no consideration of the difficulty of balancing the rights of those with strong religious convictions with those of the gay community, and how discrimination law should deal with this.

Smith confirms the strict approach taken by the courts to extending financial compensation for breach of an employment contract beyond notice pay, relying on the so-called “Johnson exclusion zone”, that to do otherwise would conflict with the will of parliament in creating unfair dismissal legislation.

If Mr Smith had brought a claim for unfair dismissal before an employment tribunal then he would have been awarded significantly greater financial compensation to reflect the actual losses he had suffered. That he had good reasons for bringing the claim the way he did (by the time he had financial backing the time limits for a tribunal claim had passed) was irrelevant.

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