We await the voice of the ECHR judges regarding whether the UK courts adequately protect UK workers to hold or manifest their Christian beliefs – you will recall the ECHR was thinking these issues through regarding a Christian registrar and a BA worker not allowed to wear a cross at work. On a similar legal note we have recently discovered the view of the ECHR that UK does not provide adequate protection from dismissal on the grounds of political party membership (in this case the BNP). Perhaps it may now be arguable that political views should be treated as incorporated into the definition of philosophical beliefs for the purposes of the Equality Act 2010.
More recently, the High Court has handed down judgment in Smith v Trafford Housing Trust a successful breach of contract claim by a Claimant demoted for making comments on Facebook expressing his personal views on gay marriage. Of note is what the court said about Facebook. The court found that:
- 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.
- 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.
- 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.
- 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.
We suggest this is helpful guidance to keep in mind when considering what to do with fast and loose fingered employees using Facebook.
Carol – Hark! The herald judges sing
Smith v Trafford Housing Trust
Ladele and McFarlane v United Kingdom/Eweida and Chaplin v United Kingdom
For more information, help or advice please contact Tim Davies on 0191 211 7927 or email [email protected].