Unlawful sacking - when commenting on homosexual sin
In the UK a court ruled that comments which expressed opposition to same-sex marriage did not fall into the category of punishable “hate speech”. In Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) (16 November 2012) Mr Smith, a council officer, had expressed some concern on Facebook about same-sex marriage being conducted in churches. A colleague, who had asked him to explain his views further, took offence at what he said. The result was, as the court said at para [5]:
For making those two comments Mr Smith was suspended from work, on full pay, on 17 February, made the subject of a disciplinary investigation and then disciplinary proceedings leading to a hearing on 8 March, at the end of which he was told that he had been guilty of gross misconduct for which he deserved to be dismissed. Due to his long record of loyal service he was told that he was with immediate effect only to be demoted to a non-managerial position with the Trust, with a consequential 40 per cent reduction in his pay, phased over 12 months.
The result of this case was that Mr Justice Briggs found that the Council had breached their contract with Mr Smith by imposing these penalties. Contrary to what had been alleged, he had not “brought the Council into disrepute”, because his Facebook comments were made on his private social media site, where while he was identified as an employee of the Council, it was clear he was not “speaking on behalf of” the Council (paras [57]-[59]). An explicit ban on his “promoting” his beliefs to colleagues was not intended to apply to the sort of remarks he made on his private social media account- see para [79].
The final ground on which the Council had relied was that his contract said that he ought not to engage in “any conduct which may make another person feel uncomfortable, embarrassed or upset”. But here Briggs J ruled that again, in the context, this was mainly intended to apply to direct workplace interactions. As he said at [82]:
The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech. To construe this provision as having application to every situation outside work where an employee comes into contact with one or more work colleagues would be to impose a fetter on the employee’s freedom of speech in circumstances beyond those to which a reasonable reader of the Code and Policy would think they applied. On any view their main application is to circumstances where the employee is working for the Trust.
The circumstances of the two cases, of course, are not identical. Mr Smith did not have thousands of Facebook friends. His comments may be said to be much “milder”. But there are similarities, and the case is a reminder that an employer may breach their contractual obligations by penalising an employee unfairly for an alleged breach of “code of conduct” obligations which has not been properly established.
