Facebook Comments from Employees: Latest High Court Guidance

December 4, 2012

The case of Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) again demonstrates the difficulties that social media can cause to both employers and employees. In this case Mr Smith (MS), who described himself as a ‘full on charismatic Christian’, was disapproving of gay marriage within Christian churches and made comments on Facebook which led to him being the subject of disciplinary proceedings by his employer, the Trafford Housing Trust (THT).

Specifically, MS responded to a news article entitled ‘Gay church “marriages” set to get the go-ahead’ by posting a link to the article and the comment ‘an equality too far’ on his Facebook page. MS’s co-workers saw the comment and, following disciplinary proceedings, MS was found guilty of gross misconduct, for which THT told him he deserved to be dismissed. Instead however, MS was offered, and accepted, a demotion to a non-managerial position, accompanied by a 40% reduction in his salary.

MS commenced proceedings in the county court (which were transferred to the High Court) for breach of contract. He did not commence unfair dismissal proceedings in the Employment Appeal Tribunal as he claimed not to have been dismissed.

Ironically, in this case it was the employer not the employee that submitted there had been a dismissal. THT argued MS was dismissed, which meant he would only be entitled to recover damages suffered during his contractual notice period. THT also argued that MS’s actions breached its equal opportunities policy, but added that even if it had been a breach of contract to demote/dismiss MS, he subsequently waived any such breach by accepting a demotion and a new position in place of a dismissal. As a consequence, in THT’s view, MS was entitled only to damages for the dismissal which amounted to the difference between his previous and current pay over the 12-week notice period (approximately £98).

Because of the way the claim had been brought, the High Court primarily had to decide whether there had been a breach of contract, and not whether or not THT’s decision had been fair or procedurally correct. In the view of Mr Justice Briggs, THT had no right to demote MS and reduce his salary in the way it had unless he was found guilty of misconduct.

The court accepted that THT had a right to determine its own code of conduct, but added such regulations would be enforceable only if made sufficiently clear to employees or if they would otherwise be objectively construed as prohibiting certain behaviour. Furthermore, it is essential to be clear on the extent to which conduct requirements apply outside of the workplace.

Mr Justice Briggs considered that there were two important questions. First, did MS’s comments appear to be made on behalf of THT? And secondly, were they likely to cause distress to THT’s employees or customers and bring THT into disrepute?

In answering the first point, it was accepted MS’s Facebook profile identified him as an employee of THT. However, the court did not believe on the facts that a reasonable reader would construe MS as a spokesperson for THT when providing what were clearly his own personal opinions. This reasoning extended to the second point, and the court held that THT’s reputation would not suffer in the estimation of a reasonable reader.

Finally, THT argued MS’s Facebook activity constituted the promotion of religious views amongst colleagues, an activity prohibited by THT, or that his comments might make other employees feel ‘uncomfortable, embarrassed or upset’. The court dismissed both arguments. The prohibition of religious views did not extend to postings on Facebook and, in relation to the second point, there was insufficient proximity between the employer’s policies and MS’s Facebook page to constitute a breach of contract. Furthermore, the fact the comments might be considered offensive to some was not determinative, as otherwise any employer could stifle its employee’s freedom of speech.

Following the decision that there had been no breach of contract, the court proceeded to find that by THT’s actions, MS had been constructively dismissed. The damages awarded were therefore, much to the judge’s dissatisfaction, limited to the difference between his current and previous pay under the 12-week notice period, which amounted to less than £100.


Although not a victory for Mr Smith by any means, the High Court’s judgment might provide some protection for employees in future cases and demonstrates that courts are reluctant to imply that employment duties and codes of conduct will govern an employee’s personal behaviour outside of the workplace. However, just as importantly, the case also serves as another reminder to employers that they need to educate employees on the importance of using social media and similar technology in a responsible manner, and employers should ensure they are afforded adequate protection under employment contracts, codes of conduct and acceptable behaviour policies. Nevertheless, employers should be aware that, when dealing with existing employees, making variations to existing agreements and regulations can itself present difficulties.

Oliver Neil is a solicitor at specialist technology law firm White & Black Legal LLP: wablegal.com