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Northern Ireland
Smith v Trafford Housing Trust [2012] EWHC 3221
Published on: 23/11/2012
Issues Covered:
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Background Mr Smith worked for Trafford Housing Trust (“the Trust”) as a Housing manager. He posted a link to an article on gay marriages in church on his Facebook page with the comment “an equality too far”. Several co workers commented on this and in response he wrote:“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‟s Facebook page noted at the top that he worked for the Trust and he was friends with 45 co-workers on the site. As a result of these comments the Trust took disciplinary proceedings leading to a hearing, at the end of which he was told that he had been guilty of gross misconduct for which he deserved to be dismissed. Due to his long record of loyal service he was told that he was with immediate effect only to be demoted to a non-managerial position with the Trust, with a 40 % reduction in pay.Mr Smith continued working in the non –managerial post and took a claim for breach of contract. He did not claim to have been dismissed and did not seek a claim for unfair dismissal – the time limit for bringing an action having passed.48The Trust argued that by making those two postings on a Facebook page which identified him as one of its managers, Mr Smith had committed breaches of the Trust‟s code of conduct for its employees, and acted contrary to the Trust‟s equal opportunities policy. The High Court found that the comments could not be associated with the Trust, nor did it bring it into disrepute. Mr Smith was not guilty of any misconduct and his demotion had been a breach of contract.Unusually in this case, it was the Trust, the employer, who alleged that there had been a dismissal. Mr Smith argued that he had not been dismissed. The damages for wrongful dismissal are limited to the wages and other financial benefits which would have been paid during the contractual notice period, less any earnings obtained by the employee by way of mitigation, including by the acceptance of some different, lower paid, employment from the same employee. For Mr Smith, this meant that damages would be limited to the difference in salary for a 12 week notice period, approximately £100.Mr Smith instead argued that he had not been dismissed, the contract of employment continued and damages were the continuing difference between his old and current salary.Unfortunately for Mr Smith, following Hogg v Dover College the Court concluded that Mr Smith‟s purported demotion, in breach of his contract of employment, amounted to a wrongful dismissal. Although the Court noted the unfairness of fact that Mr Smith had been wrongly found guilty of gross misconduct, and then demoted to a non-managerial post with a reduction in salary, it was able to award only minimal damages.http://bit.ly/S221ar

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 23/11/2012
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