Gay Marriage, Facebook and Breach of Contract
May 17 was World Information Society Day (to raise global awareness of societal changes brought about by the Internet and new technologies) and International Day Against Homophobia, Biphobia and Transphobia (to commemorate the day that homosexuality was removed from the International Classification of Diseases of the World Health Organization in 1990 and to promote LGBT rights). Given that gay marriage is hitting the headlines this week, it would be a useful time to address issues which concern both discrimination and social media in an employment law context.
Smith v Trafford Housing Trust 
Issue: The High Court had to consider whether a Christian employee who had made comments about gay marriage on Facebook had committed an act of misconduct.
Brief background: Mr Smith had posted a link from the BBC on his Facebook page, “Gay church ‘marriages’ set to get the go-ahead” and had commented just under the link that this was “an equality too far.” A colleague asked if this meant he didn’t approve to which he responded, “no, not really, I don’t understand why people 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.”
Result: He was demoted by his employer (it was entitled to do this contractually) as in its eyes he had breached its Equal Opportunities policy and his Facebook account had linked him to the employer bringing it into disrepute. The demotion also resulted in a large reduction in salary. His appeal was unsuccessful and he then made a claim for breach of contract in the High Court.
Conclusion: The High Court found that Mr Smith did not breach his contract by posting his comments on Facebook as it considered he had not brought his employer into disrepute. It also took the view that Mr Smith’s comments, made out of working hours on a weekend would not lead to a reasonable person thinking badly of the employer. As Mr Smith had not breached his contract, his employer should not have demoted him and therefore it was in breach of contract and Mr Smith was awarded his notice period (having effectively been dismissed from his old role).
Employers should therefore be very careful about actions they take where social media is concerned and always take legal advice. Please contact Ian Hass on 0800 197 3560 or email him at [email protected].