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Employer had no right to discipline in relation to alleged homophobic comments on Facebook

On 23 November 2012 Mr Justice Briggs sitting in the Chancery Division of the High Court handed down his decision in Smith v Trafford Housing Trust [2012] EWHC 3320 (Ch) a case concerning allegedly homophobic comments made by an employee on his Facebook page which his employer finds to amount to gross misconduct.

Mr Smith had expressed in fairly measured terms on Facebook his opposition to gay marriages being permitted in churches. One of his colleagues, a friend on Facebook although presumably not now elsewhere, was upset by this, describing the comments as blatant homophobia. For making the remarks Mr Smith ended up being suspended, investigated and found guilty of gross misconduct. He was demoted with a 40% salary cut which the court found amounted to a dismissal.

The employer claimed that the comments had potential to cause offence, could be seriously prejudicial to the reputation of the Trust and were in breach of the Code of Conduct and Equal Opportunities Policy which formed part of the contract of employment. 

The decision involved the proper construction of the contract of employment. Whilst the Trust was not a public body so that human rights issues were not directly engaged nevertheless a construction that would amount to a substantial interference with his freedom of expression and belief was to be avoided. 

Mr Smith had referred on his Facebook page to being employed by the Trust and he described himself as a “left of centre full on charismatic Christian”. His comments on his wall were mainly social and trivial. The judge found that no reasonable reader of the postings would think that they were made on behalf of the Trust or would assume that these represented the Trust’s view. The postings about gay marriage were not in any way work related. He also found that they did not amount to the promotion of religion. In any event that could not be construed to apply to the whole of Mr Smith’s personal life, he was after all a lay preacher! The comments were not judgmental or disrespectful.

In the circumstances Mr Smith had not breached his contract and the Trust had no right to discipline him.  Unfortunately the judge went on to rule that the Trust’s treatment of him amounted to a dismissal but that he was only entitled to damages for his notice period. Net result he received about £100.

The decision is a victory for common sense. It seems extraordinary that the matter got as far as it did no doubt at great expense to the charitable Trust.  However the traditional orthodox approach to the assessment of damages made it something of a pyrrhic victory.

Employers will be well advised to not over react to comments with which they disagree and to heed the guidance given by the judge as to what diversity involves:

“the encouragement of diversity in the recruitment of employees inevitably involves employing people with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply felt opposite views.”