In Smith v Trafford Housing Trust Mr Smith was employed by Trafford Housing Trust as a manager. He posted a link on Facebook to a news article about gay marriage in churches and commented "an equality too far". A colleague replied saying "Does this mean you don't approve?". He explained "no, not really" and went on to set out his views on the subject. The colleague complained to the employer, who disciplined Mr Smith and demoted him.
The High Court held the demotion was a breach of Mr Smith's contract, as it found that Mr Smith was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct. The court held that Mr Smith's views were not capable of bringing the trust into disrepute as no reasonable person would think he was expressing views on behalf of the trust. They were moderately expressed and made outside of working hours. The comments would not lead a reasonable person to think the worse of the Trust for having employed him.
The Trust's code of conduct stated that employees were not permitted to promote religious beliefs and the Trust relied on this in order to discipline him. However, the court held that this prohibition did not extend to his Facebook wall, as this would be too much of a fetter of free speech. The court noted that a difference in views is bound to cause upset but that is the price of freedom of speech.
Comment: This case demonstrates the limits as to how far an employer can restrict its employee's use of social media. Whether or not the use of social media can be restricted appears to turn on the purpose, context and nature of the comments. If the comments are generally considered to constitute widely held and inoffensive views then the employer should proceed with caution and carefully balance the employee's right to privacy and freedom of speech against its own competing right to protect its reputation and other employees.
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