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Employment Law

Legal guidance - compliance - software

28 JAN 2013

Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch); (2013) EMPLR 009

Contract of employment - human rights


16 November 2012

Chancery Division

Briggs J

Rights under the European Convention on Human Rights, such as freedom of expression and belief and the right to privacy can affect how contracts of employment should be interpreted.

A housing manager for a Housing Trust was a practising Christian and lay preacher. He posted a link to a BBC News website article about plans to allow civil partnerships for same sex couples in religious settings. He added a comment ‘an equality too far.' In response to a question on Facebook, he replied that the bible defines marriage as between a man and a woman and that the state should not impose rules on places of faith and conscience. He was suspended for ‘potentially serious breaches of Trust rules' - bringing the trust into disrepute, impermissibly promoting religious views and failing to treat fellow employees with dignity and respect. At a disciplinary hearing, he was demoted to a non-managerial position with a 40% reduction in pay.

He brought High Court proceedings alleging that he had not committed misconduct, so the Trust had breached his contract by demoting him and reducing his pay.

The High Court held that none of the grounds of alleged misconduct had been made out. The comments were mild and could not have brought the Trust into disrepute - they did not refer to the Trust and nobody reading his Facebook page would think he was putting forward the views of the Trust. He had not ‘impermissibly promoted' his religious views since he has the right to freedom of expression and belief. Interference with that right should be limited and confined to the workplace. Since his Facebook page was personal in nature, even if not actually private, he was not using it as a medium to thrust his views on colleagues. Colleagues could decide if they wanted to learn his personal views - as one colleague had done. Finally, the comments did not treat colleagues with lack of dignity or with disrespect. Frank but lawful expressions of religious or political views may offend those with different views but that is the price for freedom of speech.

The Court held that the demotion amounted to a dismissal. Compensation was limited to the loss of pay during the notice period.

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