The recent High Court judgment in Smith v Trafford Housing Trust highlights the difficulty in finding the boundary between working and private life when a charity is concerned about the conduct of an employee outside the workplace.
Adrian Smith was employed as a housing manager by Trafford Housing Trust, a registered charity with more than 300 employees. The Trust's Code of Conduct and Equal Opportunities Policy imposed obligations on employees regarding their conduct both in and outside work, including the use of social media.
Smith had a personal Facebook profile which identified him as a manager of the trust. A quarter of his Facebook friends were colleagues. In February 2011, outside working hours, Smith posted on Facebook a BBC News article headed "Gay church 'marriages' set to get the go-ahead" and commented "an equality too far". Two Facebook friends (both colleagues) responded and Smith made a further comment, in response to a question about whether he approved, stating "no, not really ... if the state wants to offer civil marriage to same sex that is up to the state; but the state shouldn't impose its rules on places of faith and conscience".
One of Smith's colleagues complained to the trust and an investigation and disciplinary proceedings followed. The employer alleged that the postings had caused offence, were seriously prejudicial to the trust's reputation and were a breach of its policies. Smith was found guilty of gross misconduct and demoted to a lower-paid role, a sanction in the trust's disciplinary procedure.
Smith claimed the trust had breached his employment contract by finding him guilty of misconduct and demoting him.
The court concluded that Smith did not commit any misconduct when he expressed his views on Facebook; consequently, the trust was in breach of contract by demoting him and the demotion amounted to a dismissal. Smith's compensation, however, was limited to only £100 - this was the difference between the salary of his previous and demoted roles in the 12-week notice period that he was entitled to in the event of his employment terminating.
The judge's reasons centred on the fundamental finding that Smith's comments were objectively not judgemental or liable to cause upset. The trust accepted that the comments were not homophobic. The judge also commented on how the expression of political and religious views might cause upset to those with deeply held opposite views, but this was an inevitable part of freedom of speech.
Lessons for charities
When drafting and applying policies and codes of conduct, charities should remember that these will be viewed objectively. Where obligations exist beyond the workplace, there should be a work-related context. However, such a context will not be presumed outside the workplace simply because an employee's colleagues are also Facebook friends. Codes and policies should be expressed clearly so that employees know what they can and cannot do.
Victoria Willson, a partner at Levenes Employment, third sector specialists