Saturday, 17 November 2012

Man expresses himself on Facebook. Man loses job.

One Sunday morning an employee of a registered social landlord exercised his right to freedom of expression by referring, on Facebook, to gay marriages in Churches as an 'equality too far'.   Responding to a fellow employee's request as to whether his statement was an expression of disapproval of the proposal, the employee (the Claimant) said  "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."  No offensive language, no discriminatory words - mere and pure expression of personal opinion.  His employers had a different idea, and on the Monday they suspended him and later demoted him for gross-misconduct on the basis that he had expressed homophobic views.  

Briggs J is to be congratulated for his judgment

In my judgment Mr Smith's postings about gay marriage in church are not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence. As to their content, they are widely held views frequently to be heard on radio and television, or read in the newspapers. The question remains whether the manner or language in which Mr Smith expressed his views about gay marriage in church can fairly or objectively be described as judgmental, disrespectful or liable to cause discomfort, embarrassment or upset. Again, it seems to me that it was not. He was mainly responding to an enquiry as to his views, and doing so in moderate language.

Briggs J held the Claimant's demotion to have amounted to wrongful dismissal and awarded him damages, limited as the Judge regretted, to just under £100:

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.  Mr Tomlinson expressed the hope that, if Mr Smith's case in breach of contract was well-founded, the Trust might find a way to reinstate him. I was however told by Mr Short, again on instructions, that there is no such prospect.

The Defendant, a body in receipt of public funds, if not a public body per se, should be investigated immediately by its regulator, the Homes and Communities Agency.  If the governance of the Defendant has failed to such a degree so as to cause or permit the unlawful action taken against this Claimant, and has failed to such a low level that it could not act to remedy the wrong by reinstating the Claimant, then its Board may not be considered fit to hold office.  If the HCA is not interested, may be Eric Pickles, the responsible Secretary of State will be....................section 47 Housing and Regeneration Act 2008 might assist:

Directions by the Secretary of State

(1)The Secretary of State may give the HCA general or specific directions as to the exercise of any of its functions.

(2)The Secretary of State must publish any directions given by the Secretary of State under this Part as soon as reasonably practicable after giving them.

(3)The Secretary of State—

(a)may revoke any directions given by the Secretary of State under this Part, and

(b)must publish the fact that the directions have been revoked as soon as reasonably practicable after the revocation.

(4)The HCA must comply with any directions of the Secretary of State in force under this Part.

(5)Subsections (2) and (3)(b) do not apply to directions given under section 22 or paragraph 7 of Schedule 1; and this section does not apply to directions given under Schedule 4.

(6)References in this Part to the Secretary of State giving directions include references to the Secretary of State giving directions by varying existing directions.

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