He said what on Facebook?

Year Published: 2012

Trafford Housing Trust have recently been found liable in the High Court for breach of contract after they demoted an employee who posted his personal views – relating to homosexual marriage – on his Facebook page. This case demonstrated the knee jerk reaction taken by an employer when dealing with an employee’s use of social media, which was seemingly inappropriate. So, should employers always take action?

Mr Smith was employed by Trafford Housing Trust and his Facebook wall clearly identified him as their employee. Amongst his 201 friends he had 45 colleagues listed as friends at the time and his privacy settings allowed his page to be viewed by friends of friends.

Mr Smith expressed his views relating to gay marriage on his Facebook wall and one of his 45 colleague friends was offended by his comment. His employer concluded that this was an act of misconduct and as a result decided to demote him from his position at the Trust. He was offered a lower position and agreed to work in this lower grade role under protest.

In consideration of his claim the Court found that the Trust had breached Mr Smith’s contract by demoting him and carefully considered the facts to be taken into account when viewing social media. The Court found:

1. The Facebook wall as a whole must be viewed to establish some context. Mr Smith made numerous posts on his wall about his leisure time, sport and outside interests and therefore his Facebook postings could not be construed to be made on behalf of the Trust;

2. Moderate expression of his personal views on his Facebook wall could not be construed as being on behalf of the Trust, nor would any of the readers reasonably expect the Trust to take action against him for expressing these views;

3. The postings made by Mr Smith could not be reasonably construed as work related and therefore the Trust’s disciplinary policy did not apply and should not have been invoked;

4. Mr Smith had expressed his own views, in a manner which was not intended to cause offence, nor was his language demeaning or derogatory. As with all free speech in a world of equality, personal opinions can be aired in an open forum such as Facebook. The people who were notified of his postings had chosen to be his friends and therefore interested in his opinions and thoughts.

How does this affect employers?

This case clearly demonstrates the need for employers to carefully consider whether any social media postings have an adverse effect on the business or its employees, before taking disciplinary action. Employers need to ensure that they have in place a comprehensive social media policy and that all issues are fully investigated and a common sense approach is applied.

Employers should consider:

  1. When was this post made?
  2. Who viewed the post?
  3. Has the post been made in the context of work?
  4. Does the post adversely affect the employer?
  5. Would a reasonable person believe that the post represented the view of the employer or is it the personal view of the employee?
  6. Has the post offended or upset any of the employee’s colleagues and if so in what context?

For further information on policies or disciplinaries related to social media, please contact our Employment team.

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