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The case of Smith v Trafford Housing Trust is one such case….

Mr. Smith was a practising Christian and occasional lay preacher and a housing official with Trafford Housing Trust. The claimant read a newspaper article one weekend about gay marriage in church and wrote on his Facebook wall “an equality too far.” A bit of a debate took place and Mr Smith wrote, “… 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 its rules on places of faith and conscience.”

The comments came to the attention of the employer. The claimant was suspended on full pay pending an investigation. Ultimately he was demoted with a consequent 40% reduction in pay.

Mr Smith claimed damages for breach of contract for the demotion and, the pay reduction because, he said, he was not guilty of any misconduct. He chose not to resign and claim unfair dismissal but continued to work under protest in the new job.

The High Court agreed with Mr Smith – he did nothing wrong. Unfortunately, the damages that might be awarded were “… the very small difference between Mr Smith’s contractual salary, and the amount actually paid to him during the 12 weeks following his assumption of his new, but reduced, role.”

The judge, Mr Justice Briggs, was not happy with the position:

“I must admit to real disquiet about the financial outcome of this case. Mr Smith was taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct, and then demoted to a non-managerial post with an eventual 40 per cent reduction in salary. The breach of contract which the Trust thereby committed was serious and repudiatory. A conclusion that his damages are limited to less than £100 leaves the uncomfortable feeling that justice has not been done to him in the circumstances.”

First, of interest is the reasoning on the factual issue of whether the Claimant had committed misconduct at all.

Mr Smith’s Facebook wall page identified him as an employee of the Trust. He had 45 work colleagues among his Facebook friends, including at least one who was offended by these comments. His wall was accessible by not just his 201 Facebook friends, but by friends of friends.

In finding that the demotion was a breach of contract, the Court held that:

1) No reasonable reader of Mr Smith’s Facebook wall could rationally conclude that what he wrote about gay marriage was posted on the Trust’s behalf. This was based on a reading of the wall as a whole, which included posts about sport, food and motor vehicles. It was clear that Mr Smith used Facebook for personal and social, rather than work related purposes.  Therefore if employers wish to impose a discipinary sanction up to and including dismissal they need to ensure that the social medium involved was to be used for work related purposes – This is a really important point for employers.

2) Encouraging diversity in the workforce inevitably involves employing persons with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply held opposite views. Such distress or offence is a necessary price to be paid for freedom of speech. Mr Smith’s moderate expression of his personal views, on his personal Facebook wall at a weekend out of working hours, could not sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager.

3) Facebook had not acquired a sufficiently work-related context in this case to attract the application of the employer’s disciplinary policies (even though those policies did to some extent cover conduct outside working hours and on Facebook). The Court distinguished this case from one of a targeted e-mail sent to work colleagues, or a case where work colleagues are invited to the pub for the purpose of religious or political promotion outside work; as Mr Smith’s Facebook friends had each made a choice to be his friend on Facebook and so to seek his views.

4) Mr Smith’s postings on gay marriage were not, viewed objectively, judgmental, disrespectful or liable to cause upset, offence, discomfort or embarrassment. Nor were the manner and language in which he expressed his views.

Second, it was held that the demotion, as a repudiatory breach of contract, constituted an actual dismissal, even though the employee claimed he had affirmed the employment contract, without waiving his right to damages for breach, by working at the lower grade under protest.  It was held that the original contract was at an end as Mr Smith had agreed to work in a different capacity for a greatly reduced salary under a new contract with the Trust. Unfortunately for Mr Smith, this was therefore held to be a case of wrongful dismissal.

Third, damages for wrongful dismissal are limited to financial loss during the contractual notice period, which in this case was just £98 (the difference between earnings in the two jobs for the 12 weeks’ notice period).  As there was no unfair dismissal claim, the financial compensation awarded was very limited.

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