John Lee: Social media presents new range of legal pitfalls for business

On one hand, it offers access to some-time-ago unimaginable opportunities. On the other, it presents risks that can scarcely be controlled.

In this month’s case of Smith v Trafford Housing Trust the High Court in England offered sage guidance to employers tempted to overinterpret their right to control the social media activity of employees.

Mr Adrian Smith was a housing manager for the trust. He was also a practising Christian and occasional lay preacher. He had a personal Facebook page including some 45 work colleagues among his “friends”. He posted his views on gay marriage in fairly benign terms which prompted some debate. At least one of the friends was evidently not entirely friendly, and told their employer.

The trust had fairly clear rules and policies to regulate any activities that could bring it into disrepute. These made specific reference to Facebook etc. The management took the view that his postings had brought it into disrepute, amounting to the promotion of his religious views, a failure to treat fellow employees with dignity and respect and, as such, found him guilty of gross misconduct. They demoted Mr Smith, which involved a 40 per cent reduction in his pay.

Mr Smith brought proceedings for breach of contract. The court found the trust had breached his contract of employment, for which he was entitled to damages. Mr Justice Briggs offered guidance, which should be well heeded by employers dealing with social media-related issues.

In particular, he stated no reasonable reader of Mr Smith’s Facebook page could rationally conclude that his postings were made on the trust’s behalf. There was nothing on his Facebook page to suggest that this was a medium for work rather than personal or social communications. The trust was very briefly mentioned on his page and the general context of the entries on his Facebook “wall” made it clear this was not work related.

Furthermore, a Facebook conversation was something that could not reasonably be considered to amount to “promotion” as set out in the trust’s code of conduct. In Mr Justice Briggs’ judgment, this was different from the expression of views expressed in, for example, targeted e-mails or invitations to meetings for specific religious or political purposes. He acknowledged that employers can legitimately restrict or prohibit such activities at work but in their own time employees are entitled to promote their religious or political beliefs, provided they do so lawfully. To hold otherwise would have been to unreasonably fetter Mr Smith’s freedom of speech. He concluded the postings were not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence.

Mr Smith was awarded £98 as a consequence of the rules applicable to recovery of damages in breach of contract cases. Mr Justice Briggs stated: “a conclusion that has damages which are limited to less than £100 leaves the uncomfortable feeling that justice has not been done to him …”

The case raises again the interesting and sometimes tricky question of just how far employers are entitled to go in restricting the activities of employees in their private lives. It follows a European Court of Justice decision earlier this month in which a bus driver,  Mr Arthur Redfearn, successfully argued that his human rights (in particular his right of freedom of association) had been breached when he  was dismissed after he was elected in 2004 as a British National Party councillor in Bradford.

That case could lead to fundamental changes in UK law insofar as protections from dismissal or discrimination on the basis of one’s political associations is concerned.

• John Lee is an employment law specialist with DWF Biggart Baillie