Boss wrong to demote man over anti-gay-marriage Facebook post

Nobody forced workmates to read it, says judge

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A Christian man who expressed his unfavourable views about gay marriage on Facebook - and was subsequently demoted with a 40 per cent pay cut by the Manchester-based housing trust he worked for - has won a breach-of-contract case against his employer.

Mr Justice Briggs ruled in London's High Court this morning that the actions of 55-year-old Adrian Smith's employer - the Trafford Housing Trust - had wrongly found the occasional lay preacher of being guilty of gross misconduct, before downsizing his managerial role at the org and massively reducing his £35,000 salary.

The judge said he had "real disquiet about the financial outcome of this case," and added that "Mr Smith was taken to task for doing nothing wrong."

Despite that, Smith was not entitled to substantial compensation as he failed to apply to the Employment Tribunal in time to battle against the trust's "unfair treatment" of his housing manager job.

"A conclusion that his damages are limited to less than £100 leaves the uncomfortable feeling that justice has not been done to him in the circumstances," said Briggs.

The judge added:

The trust did not have a right to demote Mr Smith by reason of his Facebook postings and that the demotion imposed by way of purported disciplinary sanction constituted a breach of contract by the Trust.

The comments in question, dated 13 February 2011 and posted by Smith, had not been deemed outwardly offensive by the trust after its employee Julia Stavordale had wrongly accused Smith of disclosing "blatant" homophobic views. But he was suspended on full pay while the trust investigated the matter.

He was subsequently told at a hearing in March last year that he was guilty of gross misconduct and deserved to be dismissed from his job, but - due to his "long record of loyal service" - would be kept on in a non-managerial position with an annual wage packet that was to be gradually reduced over the course of two years by some 40 per cent.

Smith, who had 45 friends on Facebook who were fellow employees of the trust, had posted on the site that he worked for the Trafford Housing organisation.

On 13 February, in response to an online BBC news item with the headline "Gay church 'marriages' set to get the go-ahead", Smith posted a link to the article and told his Facebook friends - many of whom were fellow Christians with a large number said to be based in Africa - "an equality too far".

His colleague, Stavordale, then asked Smith on the Facebook post: "Does this mean you don't approve?"

Smith didn't reply until the following day, when he said:

No, not really, I don't understand why people who have no faith and don't 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.

Disciplinary action against him then followed, after another workmate of Smith's - Stephen Lynch - spotted the postings on a newsfeed page he administered on Facebook called "Trusty Bear".

Lynch was not a Facebook friend of Smith's but had been able to see the comments because Smith's settings on the site were open to "friends of friends".

The trust had argued that Smith's comments could damage the organisation's reputation because it was clear he was an employee of the housing outfit.

However, Justice Briggs said that he did "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."

His conclusion was based on the fact that it was clear that Smith had not used Facebook for work purposes, but rather as a personal and social forum where he expressed his views.

The judge disagreed that Smith's postings had brought the trust into disrepute. He offered up this interesting insight into the role played by Facebook in the case:

[T]he critical difference between a targeted email (or for that matter inviting his workplace colleagues for a drink at the local pub for the purpose of enabling religious or political promotion outside work) and Mr Smith’s Facebook is that it was his colleagues’ choice, rather than his, to become his friends, and that it was the mere happenstance of their having become aware of him at work that led them to do so.

He was in principle free to express his religious and political views on his Facebook, provided he acted lawfully, and it was for the recipients to choose whether or not to receive them.

Earlier this week, Director of Public Prosecutions Keir Starmer drew a distinction between comments made down the pub and those posted on social media. He pointed out that the "recordable form" of personal views was proving more troublesome for the police who have faced a barrage of complaints about allegedly "grossly offensive" remarks found on Twitter, Facebook and other sites.

He told an audience from the ISP industry who gathered in London on Monday that "the way we communicate has gone through a revolution in the last few years". Starmer added that there was now "a huge amount of evidence that simply wasn't there before."

A point not lost on Trafford Housing Trust, whose chief exec Matthew Gardiner said of the ruling:

This has been a case about the interpretation of our code of conduct and the use of social media by our managers.

This case has highlighted the challenges that businesses face with the increased use of social media and we have reviewed our documentation and procedures to avoid a similar situation arising in the future. Adrian remains employed by the Trust and I am pleased this matter has now concluded.

The High Court judgment of Adrian Smith vs Trafford Housing Trust can be viewed here (pdf). ®

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