Monday, November 19, 2012

Facebook- again

Readers may have seen news reports relating to Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) brought by a christian employee of a UK housing trust who was demoted for some mild Facebook comments disagreeing with the celebration of gay marriages in churches.  One work colleague was apparently offended by these comments on the basis they were homophobic-a view the Court was to disagree with as it saw the comments as little more than the expression of an opinion widely held by christians and commonly expressed in the media and generally.  The Trust, presumably reflecting the view of many employers and HR managers that they are entitled to have total control over the lives of their employees, took disciplinary action.

Those of a legal inclination are likely to find the decision of Briggs J provides a robust and extremely sensible judgment on how such cases, and indeed Facebook cases in general, might be approached.  This case was not concerned with the fairness of the demotion decision (or in New Zealand terms its justification) but rather with the question of whether or not the demotion had constituted a breach of Mr Smith's contract of employment. 

A number of points were made in the judgment but I will mention only what most people (if not some HR managers) would regard as the more sensible. The first was that the mention of your employer and position as part of the abbreviated cv on a normal non-work Facebook page is unlikely to lead to lead to the assumption that comments on a Facebook page are made on behalf or or represent the views of that employer. The Court stated at :
[57] I do not consider that any reasonable reader of Mr Smith’s Facebook wall page could rationally conclude that his two postings about gay marriage in church were made in any relevant sense on the Trust’s behalf. I have two main reasons for that conclusion. The first is that Mr Smith’s brief mention at the top of the page that he was employed as a manager by the Trust (as part of a note form CV which also identified his school, his place of residence, his marital status and his date of birth) could not possibly lead a reasonable reader to think that his wall page consisted of, or even included, statements made on his employer’s behalf. A brief mention of the identity of his employer was in no way inconsistent with the general impression to be gained from his Facebook wall, that it was a medium for personal or social, rather than work related, information and views.
[59] My second reason is that, viewing the entries on Mr Smith’s wall for the period in question as a whole, it is obvious, and would be obvious even to a casual reader, that he used Facebook for personal and social rather than work related purposes. As I have said, the other entries made on the same page during that short period related to sport, food, motorcycles and cars, none of which could have any relevance to his work and all of which were about his personal and social life. Nor were his postings about gay marriage in church themselves work related.
The Court was equally skeptical that  Mr Smith's remarks might bring the employer into disrepute:
[63] On the assumption that Mr Smith was not (as I have found) reasonably to be taken as seeking to express the Trust’s own views, I cannot envisage how his moderate expression of his particular views about gay marriage in church, on his personal Facebook wall at a weekend out of working hours, could sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager.
[64] For those reasons I have come, without difficulty, to the conclusion that Mr Smith’s postings about gay marriage in church were not such as did, or even could, bring the Trust into disrepute.
The Trust also attempted to argue that  Mr Smith's Facebook page was work-related because some 45 colleagues were "Friends".  The Court was again emphatic in rejecting this argument on the basis that accessing the page and reading his comments was a purely voluntary and social activity.
[76] His Facebook wall was primarily a virtual meeting place at which those who knew of him, whether his work colleagues or not, could at their own choice attend to find out what he had to say about a diverse range of non-work related subjects.[my emphasis]
The principal basis for Mr Smith's demotion was that he was in breach of the Trust's code of conduct  that employees should treat their work colleagues with dignity and respect, being non-judgmental in approach and “not engaging in any conduct which may make another person feel uncomfortable, embarrassed or upset”. The Court accepted that if Mr Smith had expressed his views within the workplace this may have been unacceptable, as would posting comments about the morality of particular colleagues, but was clear that the facts of this case were not of that category:
[82] I have already concluded that, for the purposes of the prohibition on the promotion of religious and political views to colleagues, Mr Smith’s Facebook did not have the necessary work related context to attract that provision of the Code of Conduct. I have reached the same conclusion in relation to this part of the Code and the Policy,largely for the same reasons. The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech. To construe this provision as having application to every situation outside work where an employee comes into contact with one or more work colleagues would be to impose a fetter on the employee’s freedom of speech in circumstances beyond those to which a reasonable reader of the Cod and Policy would think they applied. On any view their main application is to circumstances where the employee is working for the Trust. For the reasons already given, Mr Smith’s use of his Facebook involved his work colleagues only to the extent that they sought his views by becoming his Facebook friends, and that did not detract to any significant extent from the essentially personal and social nature of his use of it as a medium for communication.
 Unfortunately Mr Smith's employer does not have seem to have been reasonable at any stage in these events. The Court noted that regardless of the Court's decision it had been made clear that Mr Smith would not be reinstated to his previous position although the news report now suggests the Trust has "accepted" the decision.