The UK High Court recently decided that an employee posting his views about gay marriage on his Facebook profile did not constitute misconduct and his demotion as a result of making these comments was a breach of contract.
The employee, who worked for Trafford Housing Trust, posted that gay marriage was “an equality too far”. A work colleague asked if this meant he did not approve. He posted in response “No, not really, I don’t understand why people who have no faith and do not believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience.”
His Facebook profile page stated that he was a manager of the Trust and he had 45 work colleagues joined as friends. The Trust’s disciplinary process was invoked against the employee after it received a complaint about the postings. A number of the employee’s colleagues were interviewed and one colleague stated that she had been offended by the comments. The Trust concluded that the employee’s comments on Facebook were a serious breach of discipline and of the Trust’s policies which stated that employees should act in a non-judgmental manner and should not engage in activities that could bring the Trust into disrepute. The Trust determined that the employee’s actions had brought the Trust into disrepute. Taking into account his 18 years’ service with the Trust, it decided that demotion to a non-managerial position, with a consequential 40% reduction in pay phased over two years, was an appropriate sanction. The employee continued to work for the Trust in this non-managerial position under protest and brought a breach of contract claim to the High Court.
The High Court concluded that the employee’s actions did not constitute misconduct and that he did not breach his employment contract when he expressed his views about gay marriage on his Facebook wall. It noted that no reasonable reader of the employee’s Facebook page would conclude that the postings were made on the Trust’s behalf. His Facebook page was for personal, not work-related, purposes and the comments were posted outside of working hours. It also rejected the argument put forward by the Trust that because the employee had 45 Facebook friends who were colleagues, there was a work-related context.
The employee was wrongly found guilty of misconduct and, accordingly, his demotion was a breach of contract. However, as the claim was for breach of contract his remedy was limited to his notice period. The High Court signalled that it was unhappy with the financial outcome of this case and felt that justice had not been done. It noted that if the employee had brought an unfair dismissal claim, the Tribunal could have awarded him substantial compensation for the unfair way he had been treated.
There is very little recent case-law on this area in Ireland and this UK case gives us an insight as to how the Irish Tribunals and Courts might decide such a case. This case is a reminder that employers should consider whether comments posted on a social media site actually affect the work relationship and/or impact upon the employer’s reputation. If they do not, it may prove difficult to discipline an employee.
Contributed by Catherine O’Flynn and Ciara Ruane.
Back to Legal News
