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Do you have a Social Media Policy?

Posted on 19 March 2013

The growing use of social media has raised questions about whether employees who post political or religious views on Facebook can be found to have brought their employer into disrepute. In Smith v Trafford Housing Trust, the High Court said that as Mr Smith’s page was clearly for expressing his personal and social views, his employer was guilty of wrongful dismissal when they demoted him for expressing his views on gay marriage.

What happened?

On 13 February 2011 Mr Smith posted a link to a BBC news website article headed: “Gay church ‘marriages’ set to get the go ahead” on his Facebook wall page. He then added the comment: “an equality too far”. In response to a work colleague’s question about whether that meant he didn’t approve, he expanded on his original comment at greater length.

On 17 February Mr Smith was suspended from work on full pay and after a disciplinary hearing, was told that he was guilty of gross misconduct. He was demoted to a non-managerial post which resulted in a 40 per cent cut in his pay.  He issued a claim for breach of contract in the High Court and continued to work under protest in the new job. The Trust argued, among other things, that by posting the comments on his page which identified him as one of its managers, he was in breach of its code of conduct for employees and its equal opportunities policy.

The High Court agreed with Mr Smith that his demotion was a breach of contract. First of all, his page was clearly non-work related. Although he identified himself as a manager at the Trust, it was obvious that he used it for expressing his personal and social, rather than work-related, information and views.

Nor had his views brought the Trust into disrepute. The Trust prided itself on encouraging diversity both among its customers and its employees and that  inevitably involved employing people with widely different religious and political beliefs and views, some of which, however moderately expressed, might offend people who held the opposite views.

The judge could not see how Mr Smith’s “moderate expression” of his particular views about gay marriage in church at a weekend out of working hours, could sensibly lead any reasonable reader to think worse of the Trust for having employed him as a manager.

He had not breached his employer’s code of conduct which prohibited the promotion of political or religious views. Although 45 work colleagues were listed as friends on his Facebook page, it was not work-related enough to have violated it. It would have been different if he had sent a targeted e-mail to work colleagues promoting his political or religious views from home in the evening, but he had not done that.

Likewise, the court said that it was irrelevant that postings on Mr Smith's wall would appear automatically on the newsfeed pages of his friends' Facebooks.  He was in principle free to express his religious and political views on his Facebook page, provided he acted lawfully, and it was for the recipients to choose whether or not to receive them.

Mr Smith's postings on gay marriage were not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence and nor was the way in which he chose to express those views.

It is increasingly common for employers to set out their expectations for their employees who use social media, including the types and kinds of posts and comments which the employer considers amount to misconduct. Without such a policy in place, the employer is at greater risk of employees, unaware unaware of the consequences of their actions, damaging the reputation of their business. 


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