12 December 2012
Unlike! Be careful of what you put on Facebook- Lauren Hilier Employment Solicitor explains
There's been another case of an employee getting in hot water following injudicious comments on social media sites.
In the recent case of Smith v Trafford Housing Trust, Mr Smith described gay marriages in church as "an equality too far". This comment came to the attention of his employers, who considered that he had acted in breach of their code of conduct. They started disciplinary proceedings, reached the conclusion that Mr Smith was guilty of gross misconduct and demoted him. The Court made a detailed analysis of how Mr Smith used his Facebook account. Although his Facebook homepage identified him as an employee of the housing trust, Mr Smith used the social media site as most of us do - to make banal comments about television, sport, cars etc. In this context, the Court decided that a reasonable reader would understand that the comments were Mr Smith's personal views expressed in a social setting. It was clear that the comment was not being made on behalf of his employer, and the Court held that it would be unlikely to damage the reputation of the housing trust.
This decision gives some comfort to employees who want freedom to express themselves in social media. However, that doesn't mean to say that an employee making a comment on Facebook will always be immune to disciplinary sanction.
Conduct outside the workplace and outside working hours can still be covered by an employer's code of conduct. In this case, the Court considered that Mr Smith's comment was a moderate expression of his opinion. It might have reached a different conclusion if the wording used had been more strident and more likely to offend. Also, employees should bear in mind that any comment directed at a work colleague, or a customer, would be very likely to be covered by an employer's disciplinary policy. The Court therefore held that the housing trust had breached Mr Smith's employment contract by demoting him.
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