Sunday, 18 November 2012

Case note–Smith (Adrian) v Trafford Housing Trust

How much control can an employer exert over a worker’s freedom of expression outside of the workplace? This question was addressed by Mr Justice Briggs in the case of Smith (Adrian) v Trafford Housing Trust [2012] EWHC 3221 (Ch), 16 November 2012.

Mr Smith had worked for the local authority and then Trafford Housing Trust for a continuous period of around twenty years, reaching a managerial position. He was on a salary of £35,000. However, he was demoted and had a pay cut of 40% imposed due to comments he made on Facebook. Mr Smith had 201 ‘friends’ on Facebook, of which 45 were colleagues. In his personal information he disclosed that he was a manager at Trafford Housing Trust, that he was a “full-on charismatic Christian” and politically “left of centre.” His Facebook comments, which covered such topics as motor vehicles, sport and food, were accessible by Mr Smith’s ‘friends’ and ‘friends of friends.’

On 13 February 2011, he shared a link to an article on the BBC News website titled “Gay church ‘marriages’ set to get the go-ahead”. This article explained that the government was considering lifting the ban on civil partnerships taking place in religious premises, but clarified that there were “no plans to compel religious organisations to hold ceremonies.”

In posting the link to his Facebook page, Mr Smith added his own comment that this was “an equality too far.” This elicited a response from a co-worker asking “Does this mean you dont approve?” The following day, Mr Smith added the following response:
“no not really, I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose it’s rules on places of faith and conscience.”
Mr Smith was suspended pending investigation, and subsequently found guilty of gross misconduct.

The judge identified three groups of issues: (i) interpretation and application of the employment contract, (ii) whether the contract was contravened, and (iii) the measure of damages if breach of contract was made out. The facts of the case as described above were not in contention.

The contract of employment

Discussion centred around the interpretation of the Trust’s Code of Conduct, Disciplinary Procedures and Equal Opportunities Policy. These provided variously that:
“conduct that occurs outside working hours or away from the premises of the Trust may be considered as a breach of discipline and be subject to disciplinary action.” (Grievance and Disciplinary Policy)
“we further expect employees to promote a positive image of the Trust…” (Code of Conduct)
“Employees are required to maintain the highest standards of personal/professional conduct and integrity at all times… non-confrontational, non-judgmental… not attempt to promote their political or religious views… Customers, their friends and family and colleagues must always be treated with dignity and respect.” (Code of Conduct)
“Employees should not engage in any activities which may bring the Trust into disrepute, either at work or outside work. This includes not engaging in any unruly or unlawful conduct where you are or can be identified as an employee, making derogatory comment about the Trust, its customers, clients or partners or services, in person, in writing or via any web-based media such as a personal blog, Facebook, YouTube or other such site.” (Code of Conduct)
Those in management positions were given “prime responsibility” for upholding these policies. Gross misconduct was described as “any deliberate act committed by a member of staff which is severely detrimental to the good conduct of the business or harmful to other members of staff.” Examples were offered, such as violence, drug abuse, fraud and corruption, and serious breaches of Trust procedures. Gross misconduct could result in summary dismissal. (Equal Opportunities Policy)

The disciplinary proceedings

A colleague of Mr Smith’s, who was not a friend of his on Facebook, saw the postings and made a complaint. Part of the investigation included interviews with other members of staff to elicit their reactions to the comments. Eight were interviewed, with reactions ranging from “blatant homophobia” (the person who engaged in his Facebook post) to “silly.” [37] As a result Mr Smith was served notice of a formal disciplinary hearing which would consider potential breaches of discipline described thusly:
  • Posting comments on Facebook that had the potential to cause offence, backed by the fact that one employee had found them offensive;
  • Posting comments that could be seriously prejudicial to the reputation of the Trust, backed by the fact Mr Smith’s name and employment particulars were published on Facebook and that the Trust feared its accreditation from an LGBT support group might be put at risk;
  • Serious breach of the Code of Conduct and the Equal Opportunities Code, as mentioned above;
  • Failing to take managerial responsibility, as mentioned above.
It will be noted that these descriptions were apt to place the conduct in the ‘gross misconduct’ bracket.

At his hearing, Mr Smith acknowledged that he had been “mildly provocative” to generate discussion, and that it was “a big error of judgment” disclosing his employment on Facebook. But he denied any misconduct. Instead of summary dismissal, Mr Smith was given a final written warning, and demoted as described above.


It was (eventually) common ground that demotion was only justified if the impugned comments amounted to misconduct. There was no general right to demote under Mr Smith’s contract. The outcome therefore turned on whether Mr Smith had breached the Code of Conduct or Equal Opportunities Policy. The judge analysed this under three general headings: (i) bringing the Trust into disrepute, (ii) promoting religious views, and (iii) failing to treat co-workers with dignity and respect. However, before that he considered misconduct in a more general sense.
“Like any piece of writing, a code or a policy must be interpreted as a whole, and particular forms of behaviour may constitute misconduct even though not precisely specified and prohibited. Nonetheless codes and policies which form part of a contractual framework (in the sense that the employee is required to observe and abide by them) must be objectively construed, by reference to what a reasonable person with the knowledge and understanding of an employee of the type in question would understand by the language used. If an employee is liable to be demoted and to have his salary substantially reduced as a result of misconduct, he must be entitled to ascertain from the codes and policies to which he is subjected what he is and is not permitted to do, and to understand the extent to which those obligations extend beyond the workplace into his personal or social life.” [53] (emphasis added)
(i) Bringing the Trust into disrepute

The Trust’s arguments were: a) by mentioning on his Facebook profile that he worked for Trafford Housing Trust, readers would assume Mr Smith was posting views on the Trust’s behalf; b) as a manager these views could cause distress to other employees and customers, even if they did not believe he was speaking on behalf of the Trust; [56] and c) that employing a person with such views would undermine the Trust’s reputation of support for LGBT people. [61]

The judge roundly dismissed these arguments. “I do not consider any reasonable reader … could rationally conclude that his two postings … were made in any relevant sense on the Trust’s behalf.” The “brief mention” of his position “could not possible lead a reasonable reader to think that his … statements [were] made on his employer’s behalf.” [57] Furthermore it was “obvious even to a casual reader that he used Facebook for personal and social rather than work related purposes.” [58]

Showing a remarkable insight into the workings of Facebook, the judge went on to point out that the posting would display to his friends “divorced from the reference at the top of his wall page to being a manager at the Trust. There would be no basis for the reader to make any connection between the postings and the Trust.” [60]
Furthermore, the judge:
“[could not] envisage how any such loss of reputation would arise … the Trust prides itself on encouraging diversity … [which] inevitably involves employing persons with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply felt opposite views.” [62]
“I cannot envisage how his moderate expression of views … on his personal Facebook wall at a weekend out of working hours, could sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager.” [63] “I have come, without difficulty, to [this] conclusion…” [64]
(ii) Promoting religious views

Contrary to the Code of Conduct, mentioned above.

The judge found that this prohibition was “plainly not designed to prohibit any discussion of religion and politics, even in the workplace. Rather it is concerned with proselytising…” Apart from the opening comment (“an equality too far”) Mr Smith’s posting was “prompted by a written invitation from his Facebook friend to explain his viewpoint [and not] anything which could sensibly be described as promotion.” [65]

“individuals are generally entitled to promote their religious and political beliefs … of course, an employer may legitimately restrict or prohibit such activities at work … but it would be prima facie surprising to find that an employer had … extended that prohibition to his personal or social life.” [66] (emphasis added)
The Trust argued that by dint of 45 of his Facebook ‘friends’ being colleagues, this was necessarily a work context. Clearly the Code of Conduct did extend to certain conduct outside of work hours. However, the judge was clear that it was inappropriate for this “literally to be taken to extend the Code's authority to every occasion” of interaction outside the workplace. [70] There would be certain aspects of conduct, for example borrowing money from colleagues or customers, where it would apply. [71] He could not use his home computer outside of work hours to send religious or political propaganda to his work colleagues. [73] However, the impugned conduct was found by the judge to be “very much at the work-related end of this spectrum.” [72]

This aspect then turned on whether Mr Smith’s Facebook page had acquired a sufficiently work-related character at the time of the postings. This possibility was rejected for two reasons. (i) the Facebook wall was “inherently non-work related … [Mr Smith] used it for the expression of personal views about matters which had nothing whatsoever to do with work.” (ii) “although [his] Facebook wall was not purely private … and accessible to friends of friends, actual access would still depend upon the persons in that wider circle taking the trouble to access it [76] … it makes no difference to that analysis that postings on Mr Smith's wall would appear automatically on the newsfeed pages of his friends’ Facebooks … [that] would be a matter of choice for them … a choice made wholly otherwise that in a work related context.” [77]
“He was in principle free to express his religious and political views on his Facebook provided he acted lawfully, and it was for the recipients to choose whether or not to receive them.” [78]
“the prohibition on promotion of political and religious views in the Code … did not, as a matter of interpretation and application, extend to Mr Smith’s Facebook wall. In any event, the postings … did not amount to promotion.” [79]
(iii) Mistreating fellow employees

The allegation was that the postings were “judgmental, and potentially both disrespectful and liable to upset.” [80]

However, the judge found that only one person, who had in fact invited the longer comment, was offended by the content. Another was offended by the tone. [81] He found against this argument also, for much the same reasons.
“The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech. To construe this provision as having application to every situation outside work where an employee comes into contact with one or more work colleagues would be to impose a fetter on the employee's freedom of speech in circumstances beyond those to which a reasonable reader of the Code and Policy would think they applied.” [82]
“I do not consider it to be a reasonable interpretation of those provisions that they should be taken to have been infringed if language which is non-judgmental, not disrespectful nor inherently upsetting nonetheless causes upset merely because it is misinterpreted.” [83]
For example, it would be different if the posting passed judgment on the morality of a named colleague. In contrast, Mr Smith was “mainly responding to an enquiry as to his views, and doing so in moderate language.” [84] His colleagues’ interpretation of them as “blatantly homophobic” and offensive in tone were not objectively reasonable.


Due to delay in launching his legal challenge Mr Smith was unable to make his claim in the Employment Tribunal, where compensation may have been assessed at a higher rate and on different arguments. For breach of contract, the judge was legally limited to his actual financial loss, which was assessed at £100 being the difference between contractual pay and actual (demoted) pay, which was reducing on a taper.
I must admit to real disquiet about the financial outcome of this case. Mr Smith was taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct, and then demoted to a non-managerial post with an eventual 40 per cent reduction in salary. The breach of contract which the Trust thereby committed was serious and repudiatory. A conclusion that his damages are limited to less than £100 leaves the uncomfortable feeling that justice has not been done to him in the circumstances. All that can be said is that, had he applied in time, there is every reason to suppose that the Employment Tribunal would have been able (if it thought fit) to award him substantial compensation for the unfair way in which I consider that he was treated. If, about which I can make no finding of fact (since I was merely informed about it on counsel's instructions), financial stringency made it practically impossible for Mr Smith to bring proceedings in the Employment Tribunal in time, then the injustice he has suffered, although very real, is unfortunately something which this court is unable to alleviate by an award of substantial damages.” [106]
There was, apparently, no prospect of Mr Smith being reinstated to his previous position. [107]


Mr Smith’s remarks do seem to have been at the shallow end of controversy. It is not an unreasonable question to ask why non-religious people would wish to marry in a religious building – albeit that plenty choose to do just that. It is also uncontroversial to assert that churches shouldn’t be forced to conduct such ceremonies – and arguably unlikely to be lawful under the European Convention anyway. (See UKHR Blog by Adam Wagner.)

In any case, it would be strange if expressing support for the law as it currently stands could get a person in to any sort of official trouble. One might criticise Adrian Smith for making an otiose point – after all, the BBC article to which he linked made it clear there was no proposal to force churches to conduct same-sex ceremonies. At that time the proposal was not for religious same-sex marriage anyway – despite the headline. It was for conducting civil partnerships on religious ceremonies.

It is notable that at the time, and since, Peter Tatchell has publically defended Adrian Smith’s freedom of expression in this matter. And the moderate way Mr Smith expressed himself is in stark contrast to the utterances of senior individuals from the Roman Catholic and evangelical traditions, who have bandied about warnings of “harm to society” without citing a jot of evidence in support.

I want to make a few broader comments about it however.

The judge made a passing reference to the Human Rights Act and the convention rights to freedom of expression and thought, conscience and religion, before dismissing the possibility of challenges on these bases. Trafford Housing Trust may be considered a hybrid public body for the purposes of provision of public housing, but matters of employment are strictly private law. See Donoghue v Poplar Housing [2001] EWCA Civ 595, particularly at [55-66].

This case was expressly not an inquiry into the disciplinary procedures. [35] I am not well versed in employment law. (Anybody like to expand on this point at all?) However, I was struck by the way the investigation was carried out. We are given to believe that the impugned comments were shown to other members of staff and their reactions polled – in other words, a fishing expedition. Is this normal procedure? It sounds remarkably like leading questions to me, and potentially procedurally unfair for it. I would be interested to know if this procedure would have been upheld had the matter been taken through the Employment Tribunal.

Mr Justice Briggs’ formidable grasp of Facebook cannot be overlooked. See [26-29] and elsewhere as mentioned above. This is one judge against whom the epithet ‘out of touch’ cannot be applied.

There is the welcome confirmation that one is able to be oneself outside of the workplace even among colleagues and potential customers. Limits are applied by the general law, which in this context would seem to amount to the criminal offences of propagation of hate-speech and incitement. The employer’s reach to non-work situations is on a sliding scale, protecting individuals who are targeted as employees or customers, or where the employee purports to speak on behalf of his employer. Merely identifying one’s employer incidentally is of no consequence.

The principles that Mr Justice Briggs enunciated about the use of Facebook, where readers had to choose to subscribe to receive Mr Smith’s updates, or alternatively deliberately visit his “wall”, might well be amenable to extrapolation into the realm of Twitter, blogs and personal websites, where one has a similar choice whether or not to view content.

However, I end with a slight misgiving. As the judge made clear at paragraph 9, his first task was the “interpretation and application of the employment contract.” That process may be similar to statutory construction, where an interpretation that is good for one is good for all. However, interpretation of contracts differs in the fundamental sense that they are potentially unique to each situation, and it is not difficult to imagine a contract expressed in more restrictive terms than that applying to Mr Smith.

What would the court’s reaction be to a contract that expressly purported to restrict such utterances? Would we then be into the realm of onerous contractual terms? These questions takes the argument firmly outside of my area of knowledge, but I warmly welcome comments addressing these or any other questions arising from the case.


  1. Thank you! I am now following this blog.

    "There was, apparently, no prospect of Mr Smith being reinstated to his previous position. [107]"

    That is why I have started a petition, addressed to Trafford Housing Trust, entitled "Reinstate or compensate Adrian Smith". Please sign it. There is a short introduction and link to the petition itself on my own blog.

  2. I wonder if Mr Smith might find himself pushing at an open door, if he now resigned from his new, lower-paid post, and made a timely application to the Employment Tribunal for unfair dismissal from THAT job on the date of his still-recent resignation. He could claim constructive dismissal, because his employer's action in making a cheap "apology" publicly for his unfair demotion, but quietly doing absolutely nothing to right the wrong apologised for, made his position untenable.

    Presumably, because he only won £98, and he had turned down an offer of about ten times that amount, which was probably made "without prejudice save as to costs", he has to pay his employer's costs.

  3. Hello John, thank you for your comments.

    As to costs, they would normally be awarded to the successful party, so in this case I would expect Trafford Housing Trust will have been ordered to pay Mr Smith's legal costs.

    To be honest, I am not sure the position re constructive dismissal - I imagine his lawyer will have gone through the remaining options with him.

    Maybe someone with a little more knowledge of the Employment Tribunal system will comment later.