Writing for PinkNews.co.uk, employment lawyer Anna Furness says the recent high profile legal case of Christian housing worker Adrian Smith, who was demoted by his employer for posting remarks against gay religious weddings on Facebook, and also the Lord McAlpine saga, illustrate the potential dangers of social media for employees.

As Lord McAlpine’s lawyers call for all those Twitter users who tweeted or re-tweeted the allegations against him to come forward voluntarily and reach a legal settlement, it is becoming common knowledge that anyone who places content on online forums like Facebook, Twitter or YouTube is legally responsible for that content.

Use of social media is now mainstream and as a method of interacting, is used increasingly widely, not only personally but also professionally. What is often not taken into account however, is the clash between our freedom to express personal views and our obligations as an employee of a particular organisation, which may require us not to express a particular viewpoint. Where do the boundaries lie? Last week, another case hit the headlines when an employee was found to have been unfairly disciplined for making comments about gay marriage on Facebook.

Mr Smith was a long-serving manager with the Trafford Housing Trust. On his Facebook page he named his employer, and described himself as a “full on charismatic Christian”, and 45 of his Facebook friends were colleagues. He posted a link to an article entitled “Gay church ‘marriages’ set to get the go ahead”, adding his own comment that this would be “an equality too far”. Amongst his Facebook friends was a colleague from the Trust who was upset by the comments made by Mr Smith, which she considered to have been homophobic. She raised a complaint with the Trust. As the employer of both Mr Smith and his colleague, the Trust was under a duty to investigate the situation. Employers owe a duty of care to all their staff to ensure that the working environment is not a hostile one and that gay colleagues are treated with respect.

The Trust had an Equal Opportunities policy in place which obliged its staff to demonstrate respect for the communities it works for and for all colleagues, and required employees not to promote religious or political views. As a result, the Trust decided that Mr Smith’s actions in posting the comments, even though made outside of work time on his personal Facebook account, amounted to serious misconduct. Mr Smith was therefore demoted and his pay decreased by 40%.

Earlier this month, however, the High Court held that the Trust’s actions in demoting Mr Smith amounted to an “unfair” breach of his contract with them. The comments Mr Smith had made were considered not to be in breach of his obligations to his employer so he should not have been demoted. The CEO of the Trust said: “Those cases highlighted the challenges that businesses face with the increased use of social media”.

As a result of this judgment, employers may now be wary of taking disciplinary action against those who make comments on social media networks which could be offensive to other employees. This case demonstrates what was already clear: there can often be a clash between the interests and personal beliefs of one staff member and another and employers are in the uncomfortable position of trying to arbitrate between workers.  Employers need to ensure that they are balancing the right of all individuals to freedom of expression whilst bearing in mind that they should not allow staff to make potentially offensive comments.

How to protect yourself online:

Employers should not allow staff to make offensive comments,  but need to balance the interests of all staff members.

  • Remember – unless your Twitter account is locked, your tweets can be read by anyone, not just your followers.
  • Who are your friends? Depending on your Facebook privacy settings, your comments can be viewed by your friends, friends of friends, or everyone.
  • When adding colleagues as friends, you may run into problems at work if your colleagues are upset or offended by comments or pictures you post.
  • Consider before posting whether others may find the content offensive or upsetting, even if you are not at work.

Anna Furness is an employment lawyer at International Law Firm Taylor Wessing.