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Social networking: freedom of speech vs protection of legitimate business interests

Sarah Henchoz , 20 Nov 2012

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The decision of the High Court in Smith vs Trafford Housing Trust – where a Christian demoted for Facebook comments against gay marriage won his case – highlights once again the growing importance of social media policies in the workplace. It is a stark reminder of the problems and difficulties that arise from the 'personal' blending with the 'professional'.

Social media is a workplace issue and it is here to stay. The only way to manage the potentially huge risks is for employers to educate their workforces about where the boundaries lie, and the consequences for crossing the line.

Smith was demoted and, as a consequence, suffered a reduction in pay following disciplinary action for comments he posted on his Facebook page about gay marriage. His Facebook page referred to him as an employee of the Trust, and was accessible not only to his friends but also by friends of friends and, therefore, was accessible to a large section of the Facebook community.

The comments relied on by the Trust to justify Smith's demotion were (1) that he posted a link to a BBC article on gay marriage on his Facebook page adding the comment "an equality too far" and (2) that in response to a query from one of his friends, who was also an employee of the Trust, as to whether that meant he did not approve of gay marriage, Smith confirmed that he did not approve and provided his reasons for this. The Trust argued that his actions brought the Trust into disrepute, that they breached the Trust's code of conduct, and that the comments were judgmental, disrespectful and liable to cause upset or offence. Mr Smith claimed that his demotion was a breach of his contract of employment and amounted to a wrongful dismissal. He did not bring a claim in the Employment Tribunal for unfair dismissal or for discrimination on the grounds of religion or belief.

Upholding Smith's claim, the High Court held that the comments posted by him needed to be looked at in context. First, they were made among other purely social comments about football and other leisure pursuits, and the brief mention of him being an employee of the Trust was not enough to distract from the fact that his Facebook page was a medium for personal or social views. Second, he could not reasonably have been considered to have been posting opinions on behalf of the Trust as his comments were not work related and were made outside of normal working hours. Third, his opinions could not be considered as a breach of the code of conduct because, on a strict interpretation of that code, his comments could not be seen as a promotion of political or religious views. On the basis that his comments were widely held views frequently heard on radio and television or read in newspapers, the court held that they could not be viewed objectively or be considered judgmental, disrespectful or liable to cause upset or offence. He had been responding to a specific question from a friend on his site (albeit this friend was a colleague) asking him for his views.

While Mr Smith successfully defended his employer's decision to demote him for the comments he made, employees should not consider this ruling as giving them carte blanche to express what may be considered by others to be extreme or offensive opinions as they could form the basis of an harassment claim both against the company and against the employee personally. Even with appropriate privacy settings, employees cannot be sure that their employer won't find out about any such comments and take disciplinary action where appropriate. For example in Preece v. JD Weatherspoons, an employee who posted critical remarks about certain customers on her Facebook change was held to have been validly dismissed for gross misconduct despite her reacting to earlier verbal abuse and threatening behaviour from those customers. In this case the comments clearly concerned work. Further, her employer operated a hotline for employees to use to vent frustrations and, therefore, the Tribunal found she should have taken this more formal route rather than posting comments on a social networking site, which were available to a number of people including the customers concerned.

For employers these cases highlight the need for clear policies governing an employee's use of social media, what can give rise to disciplinary action, to what extent work-related matters can be referred to (if at all) and, if it is or if an employee has been specifically authorised to post comments on behalf of his employer, who will retain ownership of those comments and any contact lists of followers to the employee's site. Employers cannot automatically conclude that if an employee makes personal comments which others find offensive that employee will be bringing the organisation into disrepute. It is important that the comments are looked at in context, and whether they can truly be said to have a detrimental effect on the organisation, its business, customers or other employees.

Sarah Henchoz (pictured) is employment partner at law firm, Allen & Overy

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