Facebook Views Did Not Constitute Misconduct

There have been a number of cases recently regarding employees who have been dismissed as a result of their use of Facebook and other social media websites, which have highlighted the tension between an individual’s private and working life.

A recent case has been heard by the High Court, in which a Christian employee, Mr S, expressed his views on gay marriage on Facebook. He was friends with a number of colleagues on Facebook, and one in particular considered his views to be offensive. The employer had a Code of Conduct (“the Code”), to which Mr S was contractually bound, which stated amongst other things that employees should (i) maintain a positive image for the employer; (ii) act in a non-confrontational, non-judgmental manner with customers and colleagues; and (iii) not engage in activities which might bring the Trust into disrepute, either at work or outside work. Point (iii) included not making derogatory comments about the employer or engaging in unruly or unlawful conduct on sites such as Facebook.

The employer, in accordance with its disciplinary policy, found Mr S was guilty of gross misconduct. Although it was found that his actions warranted dismissal, the employer decided not to dismiss, and instead demoted Mr S, which resulted in a 40% reduction in his pay. The employer took into account Mr S’s colleagues’ views on the comments and also the fact that Mr S’s Facebook profile page stated that he was a manager of the employer and therefore asserted that this linked his views to that of the employer.

Mr S continued to work in his new role, but brought a claim in the High Court for breach of contract, on the basis that the employer was not contractually entitled to demote him.

The High Court held that Mr S did not breach his employment contract and the employer had not been entitled to characterise his conduct as misconduct warranting demotion. The Court held that no reasonable person would think that Mr S was expressing views on the employer’s behalf, just because he identified himself as a manager of the employer on his Facebook page. The general impression of his Facebook page was that it was for personal and social information, and his wall was clearly not being used for work-related communications. Further, the Court held that Mr S had merely been explaining his viewpoint on the issue of gay marriage, in response to a written invitation from a colleague to do so, and so it could not be said that he was promoting his views.

Therefore, it was held that the employer had committed a breach of contract by imposing the demotion, meaning Mr S had effectively been dismissed from his previous role. Had he brought a claim for unfair dismissal, on the basis of the Court’s judgment, he would likely have succeeded. 

This case makes it clear that a work-related context in respect of such social media websites will not easily be presumed, and it appears that each case will turn on its own specific facts. Employers wishing to take action in such circumstances should seek legal advice before doing so.