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Anti gay marriage Facebook comments High Court fails to ‘like’ employer’s misconduct verdict

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In the face of an increasing number of employment law disputes concerning the use of social media, specialist employment solicitor, Kenneth Lees, encourages employers to exercise caution when dealing with social media issues.

The case of Smith v Trafford Housing Trust saw the High Court hold that the Trust had acted unlawfully by demoting an employee who, outside of working hours, had posted his views about gay marriage on Facebook.

Mr Smith, a practicing Christian and occasional lay preacher, posted a link to a BBC News website article entitled ‘Gay church ‘marriages’ set to get the go-ahead’ and, when asked by a friend ‘Does this mean you don’t approve?’ Mr Smith commented: 'no not really, 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'.

The Trust commenced disciplinary proceedings when it found out about the comments, finding Mr Smith guilty of gross misconduct, demoting him to a non-managerial role and cutting his pay from £35000 to £21400. Mr Smith issued proceedings for breach of contract claiming that, under his employment contract, the Trust was only entitled to demote him if he was guilty of misconduct.

Mr Smith was successful in his claim, albeit he was only awarded £98, as the High Court held:

1. No reasonable reader would have rationally concluded that Mr Smith’s postings had been made on the Trust’s behalf. The comments did not, and could not, have brought the Trust into disrepute.

2. Viewed objectively the postings were not liable to cause upset or offence.

3. The demotion, in breach of the employment contract, amounted to a wrongful dismissal.

Cases concerning use of social media outside of working hours are very fact-dependent. Employers must always act within the terms of their own policies and procedures. Where comments are made in an employee’s own time that relate to the employer or other individuals in the workplace action may well be justified, but this is an area where employers must proceed with care.

For advice on social media policies in the workplace, contact our employment solicitors on 0161 785 3500

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.

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