Freedom of Speech in Social Media – UK Employee Unlawfully Demoted for Christian Gay Marriage Facebook Posts


In the recent UK case of Smith v. Trafford, the Claimant was awarded just £98 (approx. $150) by the English High Court for a successful breach of contract claim against his housing trust employer (the “Trust”). The Claimant, Mr. Smith, had posted two comments on his Facebook wall expressing his views on gay marriage. One comment stated “equality too far” and the other comment elaborated on his reasons for opposing gay marriage. In the Trust’s view, Mr. Smith’s comments amounted to a serious breach of its Code of Conduct and Equal Opportunities Policy. He had a significant number of colleagues as his Facebook friends and the Trust was concerned that his personal views would be interpreted as its own. Consequently, the Trust found Mr. Smith guilty of gross misconduct but rather than dismissing him, demoted Mr. Smith to a non-managerial position with a resulting 40 percent reduction in his pay.

Mr. Smith did not pursue an unfair dismissal claim in the Employment Tribunal but instead claimed successfully for breach of contract (based on the unilateral demotion) against the Trust in the High Court.

In reaching its decision, the High Court found that:

  • No “reasonable reader of Mr Smith’s Facebook wall could rationally conclude that his [postings were made] on the Trust’s behalf”.
  • Mr. Smith used Facebook for personal and social reasons and there was an insufficient connection between his Facebook page and his work to constitute a breach of the Trust’s Code of Conduct or the Equal Opportunities Policy.
  • With a view to encouraging diversity, a degree of distress arising from the differing religious and political beliefs in the workplace is a necessary price to be paid for freedom of speech.
  • Mr. Smith’s comments were not, when viewed objectively, “judgmental, disrespectful or liable to cause discomfort, embarrassment or upset”.

The Court held that Mr. Smith’s demotion to a non-managerial position was a breach of his contract and constituted a dismissal. Mr. Smith’s original contract of employment was deemed to have been terminated and by continuing to work for a reduced salary, Mr. Smith had impliedly consented to a new contract albeit on the new, less favourable, terms. Mr. Smith’s damages were limited to the financial loss suffered during the notice period; that is the difference between earnings in his two jobs for the 12 weeks notice period, which totaled £98. If Mr. Smith had brought a claim for unfair dismissal in the Employment Tribunal, his damages would not have been limited to the same extent and he may have been entitled to significantly more compensation.

This case represents something of a departure from the more typical judicial view in the UK that employees’ Facebook posts rarely attract sufficient privacy to protect them from their employer’s disciplinary action. The Court was very careful, however, to assert that this question was a matter of fact and degree and this was very much a case on its own facts – the outcome may well have been different if it had been considered by the Employment Tribunal on unfair dismissal principles. The Court went on to say that it “is not difficult to imagine the use of Facebook, for example to pass judgment on the morality of a named work colleague, which would contravene this part of the [Trust’s Code and Policies]”. This case does not, therefore, mean that employers should feel restricted from taking disciplinary action against an employee in respect of certain Facebook posts. Rather, it highlights the importance of having a clear and carefully drafted Social Media Policy and the need for due consideration to be given to all of the facts of the particular case and an objective consideration of whether disciplinary action is warranted on that basis.

Smith v. Trafford Housing Trust [2012] EWHC 3221