Tuesday 20 November 2012

Facebook dismissal - court upholds traditional measure of damages

[Thanks to Peter Taheri of 5 Essex Court for preparing this case summary]

The High Court has handed down judgment awarding just £98 to the Claimant in Smith v Trafford Housing Trust; a breach of contract claim by a Claimant demoted for making comments on Facebook expressing his personal views on gay marriage. This case raises a number of issues:

First, of interest is the reasoning on the factual issue of whether the Claimant had committed misconduct at all. Some of the points may well assist claimants in Facebook cases.

Mr Smith's Facebook wall page identified him as an employee of the Trust. He had 45 work colleagues among his Facebook friends, including at least one who was offended by these comments. His wall was accessible by not just his 201 Facebook friends, but by friends of friends.

In finding that the demotion was a breach of contract, the Court held that:

1) No reasonable reader of Mr Smith's Facebook wall could rationally conclude that what he wrote about gay marriage was posted on the Trust's behalf. This was based on a reading of the wall as a whole, which included posts about sport, food and motor vehicles. It was clear that Mr Smith used Facebook for personal and social, rather than work related purposes.

2) Encouraging diversity in the workforce inevitably involves employing persons with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply held opposite views.  Such distress or offence is a necessary price to be paid for freedom of speech. Mr Smith's moderate expression of his personal views, on his personal Facebook wall at a weekend out of working hours, could not sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager.

3) Facebook had not acquired a sufficiently work-related context in this case to attract the application of the employer's disciplinary policies (even though those policies did to some extent cover conduct outside working hours and on Facebook). The Court distinguished this case from one of a targeted e-mail sent to work colleagues, or a case where work colleagues are invited to the pub for the purpose of religious or political promotion outside work; as Mr Smith's Facebook friends had each made a choice to be his friend on Facebook and so to seek his views.

4) Mr Smith's postings on gay marriage were not, viewed objectively, judgmental, disrespectful or liable to cause upset, offence, discomfort or embarrassment. Nor were the manner and language in which he expressed his views.

Second, it was held that the demotion, as a repudiatory breach of contract, constituted an actual dismissal, even though the employee claimed he had affirmed the employment contract, without waiving his right to damages for breach, by working at the lower grade under protest. Despite Mr Smith's argument that an "unaccepted repudiation is a thing writ in water", it was held that the original contract was at an end as Mr Smith had agreed to work in a different capacity for a greatly reduced salary under a new contract with the Trust. Unfortunately for Mr Smith, this was therefore held to be a case of wrongful dismissal.

Third, damages for wrongful dismissal are limited to financial loss during the contractual notice period, which in this case was just £98 (the difference between earnings in the two jobs for the 12 weeks' notice period). Mr Smith's argument that the latter principle had been undermined by Durham Tees Airport v BMI Baby Ltd and anr did not succeed. As there was no unfair dismissal claim, the financial compensation awarded was very limited. This underlines the importance of bringing one's claim in time in the most appropriate tribunal.

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