Partner Article

Freedom of speech or breach of contract?

After a Christian was demoted in his job as a result of a comment left on Facebook about gay marriage, a judge ruled in his favour over a breach of contract. The 55-year old Adrian Pratt received a 40% paycut and a de-ranking from a managerial position after he commented on a BBC news story that a gay wedding in a church was “an equality too far.” Martin Pratt, associate at Lester Aldridge, gave his view of the case, and how employers can protect themselves from making the same mistakes.

“The High Court handed down Judgment, awarding Adrian Smith just £98 compensation in the case of Smith v Trafford Housing Trust for a successful claim of breach of contract following his demotion for comments made on Facebook.

In deciding whether Mr Smith’s posting of comments expressing his personal views on gay marriage amounted to a breach of the Code of Conduct or of the Equal Opportunities Policy, the Court took into account a number of issues;

Firstly, it was considered clear from all the circumstances that Mr Smith only used Facebook in a personal capacity, and therefore no reasonable reader of Mr Smith’s Facebook profile could rationally conclude that his comments were posted on the Trust’s behalf.

It was also held that it was his colleagues’ choice to become connected to him on Facebook, and he was, in principle, free to express his religious and political views on the site. It was for the recipients to choose whether or not to receive them. Mr Smith’s “polite” expression of his personal views, on his personal Facebook wall at a weekend, out of working hours, could not rationally lead any reasonable reader to acquire a negative opinion of the Trust for having employed him as a manager.

Thirdly, Facebook had not acquired a sufficiently work-related context in this case to attract the application of the employer’s disciplinary policies.

Lastly, Mr Smith’s postings were not, viewed objectively, judgemental, disrespectful or liable to cause upset or offence. Nor was the manner and language in which he expressed his views. He was primarily just responding to the BBC story as to his views, and was doing so in moderate language.

It was held that Mr Smith’s demotion, as a repudiatory breach of contract, constituted an actual dismissal. Unfortunately, as Mr Smith had temporarily agreed to work in the different capacity for the reduced salary under a new contract, it was held that the original contract was at an end and this was therefore held to be a case of wrongful dismissal. As damages for wrongful dismissal are limited to financial loss during the contractual notice period, which in this case was just £98, the financial compensation awarded was very limited. This “legal technicality” heavily emphasises the importance of bringing a claim in time in the most appropriate tribunal.

This case also serves as a warning to employers to make sure that, before disciplining someone, their policies and procedures actually allow them to take the action that they are proposing. Without the contractual right to demote someone or cut their pay as a disciplinary sanction, this will undoubtedly result in an employer’s breach of contract.

An employer should also have a social media policy in place allowing them to take disciplinary action in relation to certain comments made on Facebook (or indeed other social networking sites) even where the comments are made in the employee’s free time and outside of the workplace. The policy should make it clear that inappropriate usage of social media, like the discriminatory comments made in this case, will result in disciplinary action.

What the employee said may well have been in breach of the employer’s ethos, but without these necessary policies and contractual rights in place, the employer was bound to lose this case.“

This was posted in Bdaily's Members' News section by Lester Aldridge LLP .