23 November 2012: Facebook Face-Off:

Hot on the tails of press reports of threats of legal action by Lord McAlpine against Twitter account users, comes the case of Smith v Trafford Housing Trust in which Mr Smith was demoted for airing his views on gay marriage on Facebook.

The High Court held that his demotion was a breach of contract. The Court took the view that it was clear that his views on gay marriage were nothing to do with the Trust. Equal opportunities employers have to accept that their staff may have widely different religious and political beliefs which not everyone will agree with. Mr Smith’s moderate expression of his personal views on his personal Facebook wall at out of working hours were clearly nothing to do with his employment with the Trust. Also, Facebook (unlike perhaps LinkedIn) was not a work-related context.

Compare that to Gosden v Lifeline in 2011 in which Mr Gosden sent an email from his home computer to a former colleague’s home pc which contained racist and sexist material but telling the recipient to pass it on. He got sacked as a result and could not rely on the his right to privacy under the Human Rights Act.

In the present case Mr Smith was awarded a mere £98. When he was demoted, he could have resigned and claimed constructive dismissal, but chose not to. Mr Smith had agreed instead to work in a different capacity for less money under a new contract with the Trust. His losses for ‘wrongful dismissal’ from his job as a manager were limited to financial losses during the contractual notice period, which came to a paltry £98.

In addition to illustrating the perils of using social media, this case also illustrates that even when a Claimant wins, they may still not win very much at all.

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