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Employers must look at the wider context in Facebook disciplinaries

21 November 2012

In Smith v Trafford Housing Trust, Mr Smith brought a successful breach of contract claim following his demotion for posting personal opinions about gay marriage on Facebook.

In the wider context, given the timing of the post and moderate words used, no reasonable reader would conclude that the opinions were those of the Trust or think worse of the Trust for employing Smith. Interestingly, the Court considered the degree to which the Trust’s other policies limited their employees’ actions outside working hours, and how far they could infringe on an employee’s rights of expression and belief. For example, the Trust could not prohibit Mr Smith from preaching in church.

Employers should review their disciplinary and social media policies to ensure that the prohibitions they contain are consistent. Where disciplinary action is taken based on social media activity, employers must ensure they look at the posting in context, as this may change its very tone and nature. Smith could also have brought claims for unfair dismissal and, arguably, religious discrimination, but could not afford to do so.

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