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Wednesday, 21 November 2012

Employment once more: Smith v Trafford Housing Trust

Recently I wrote about an employee dismissed because he joined the British National Party. I argued that someone’s political views ought not to be a ground for dismissal or discipline unless they were somehow relevant to the job. Because the claimant in that case had an exemplary work record, his political affiliation plainly had not affected his work and accordingly he should not have been dismissed – whatever anyone thinks of the BNP. The case of Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) provides another, stronger example of the same principle.

Mr Smith was employed as a housing manager by the defendant, a private housing trust. In February 2011 he placed a link on his Facebook page to a BBC news article about gay marriages in church, and added the comment “an equality too far”. On the same day one of his Facebook friends responded with the comment “Does this mean you don’t approve”, to which he responded:

“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 (sic) rules on places of faith and conscience.”

For making his two comments Mr Smith was suspended from work on full pay, made the subject of a disciplinary investigation and then disciplinary proceedings leading to a hearing in March 2011, at which he was told he was guilty of gross misconduct justifying his dismissal. Because of his service record, however, he was instead demoted to a non-managerial position, with a consequential 40% pay reduction, phased over 12 months. His subsequent appeal was effectively dismissed, though with an extension of the phasing-in of the salary reduction from one to two years. He issued proceedings contending that the defendant had breached his contract by the demotion and pay reduction.

He contended that he had not been guilty of gross, or any, misconduct in posting the Facebook comments.

The defendant maintained that he had committed breaches of its code of conduct for employees, and acted contrary to its equal opportunities policy.

The judge held that a reasonable reader of Facebook wall page could not rationally conclude that Mr Smith’s two postings about gay marriage in church had been made in any relevant sense on the defendant’s behalf. The brief mention on his Facebook page of the identity of his employer was in no way inconsistent with the general impression to be gained from his Facebook wall – namely, that it was a medium for personal or social, rather than work related, information and views.

That was not to say that Facebook could never be used as a medium for work related communications, but clearly Mr Smith had not been using it in that fashion. Any reader would be left in no doubt that he regarded his employment merely as a fact – and not a particularly interesting fact – about himself. Nor were his postings about gay marriage in church themselves work related.

Those findings constituted robust common sense. Apart from anything else, putting the case at its highest in the defendant’s favour – that is to say, assuming that the comments could in some way be linked to Mr Smith’s employment – I still do not see how the defendant could have been justified in demoting him. As the judge said, his posts were not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence. They were widely held views frequently to be heard on radio and television, or read in the newspapers. He had been mainly responding to an enquiry as to his views, and doing so in moderate language.

Mr Smith’s claim therefore succeeded. Unfortunately the correct measure of damages was 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. That was a modest sum indeed and rendered his victory somewhat pyrrhic. The judge expressed “real disquiet” about that fact – Mr Smith, he reiterated, had been 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 defendant thereby committed was serious and repudiatory. It was accordingly very lucky indeed to get off so lightly in financial terms.

I suspect that the defendant was acting out of the laudable motive to be seen to be an equal opportunities employer, and not to be seen to endorse any views discriminatory towards any potential customers. These are understandable aims, but do not justify the sort of action that was taken against Mr Smith. The defendant’s policies do not need to be enforced by some form of thought police. If Mr Smith held some views which he only ever expressed in his personal capacity, that was his business, unless perhaps they were so objectionable and offensive and directed at potential customers. But Mr Smith’s views were nothing of the sort. One feels that a disturbing climate is generated by these sorts of cases, in which all employees are expected to be on message politically – something ironically inimical to the notion of a diverse, tolerant society, which has to tolerate dissent and a wide range of views, even those counter to the zeitgeist.

The overarching principle for cases such as Mr Smith’s is that mentioned at the beginning: employees should only be hired or fired, promoted or demoted, according to actions relevant to their job. If they express views in private that have no bearing on their performance at work and in no way related to their employer, it is hard to see why they should be sanctioned by the employer, even if the views are ones which the employer does not share.

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