The clash between gay rights and religious beliefs reared its ugly head again in the High Court last month, with what some may find surprising consequences.  Following recent case law in this area, (see this blog ‘No room at the inn for the fundamental right to discriminate’, October 13th 2012), employers could be forgiven for thinking that in situations where these two polarising rights collide, the protection of sexual orientation would “trump” that of religious beliefs.  Perhaps this is why Trafford Housing Trust felt that it was justified in demoting one of its managers for posting comments on Facebook which indicated his disapproval of gay marriage.

Adrian Smith, a practicing Christian and occasional lay preacher who describes himself on his Facebook page as a “full-on charismatic Christian”, posted a BBC link about gay marriage on his Facebook wall, along with the comment, “an equality too far”.  When a colleague asked whether this meant that Mr Smith did not approve of gay marriage, he stated on his page “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…but the state shouldn’t impose its rules on places of faith and conscience”.

Mr Smith’s Facebook profile was notionally ‘private’, so no-one could see the comment without first being his “friend”.   His profile stated where he worked, but was used for only private and social rather than business affairs.  Additionally, Mr Smith posted these comments at the weekend, from his home.

However, the Trust seemingly went into rather a flap, fearing that these ‘unfashionable’ comments against gay marriage would be associated with it as his employer.  Mr Smith was suspended from work, then demoted to a non-managerial role with a 40% pay cut because of his “gross misconduct”.  The Trust informed him that the only reason he had avoided dismissal was his long service.

The High Court saw things slightly differently.  It ruled that 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 that the Trust had committed a serious and repudiatory breach of contract.  Even Peter Tatchell, the prominent gay and lesbian rights’ campaigner, described the Trust’s actions as “excessive”.

I think this judgment will be welcomed by most – for fear that a judgment to the contrary would see the start of a clamp-down on any kind of negative expression or opinion on gay rights or gay marriage, even if it is cogent, measured and not intended or reasonably likely to be inflammatory.  This case muddies the waters of which way the Courts and the Employment Tribunal may swing on the gay rights/religious beliefs issue in the future.   It is not clear, for example, whether if Mr Smith had posted those remarks during working time, the outcome would have been different.  Where is the line between the expression of a view in civil and considered tones (though somewhat marginal punctuation) and material of a homophobic nature?  Mr Smith had advanced on Facebook the equally courteously-put view that ethnic minorities should by the tenets of his religion be denied some of the rights afforded to whites, would that have been acceptable?  It is tempting to think not.

This case also highlights some of the difficulties caused by the overwhelming popularity of social media sites, and many employees using them to communicate and express their opinions and beliefs.  Keep in mind that the scope for going down in flames under the weight of your own good intentions is considerable.  A knee-jerk assumption that the expression of a faintly non-PC view is discriminatory and therefore gross misconduct must be avoided.

It seems that the message to take from this case is: do implement a fair and rational policy in respect of your employees’ social media activities, but don’t react out of fear and take things too far if they happen to make a private and personal statement that is not reasonably beyond the pale, that does not affect their day-to-day work and that hardly anyone will see!

After the High Court’s judgment, the Trust’s Chief Executive stated that “At the time we believed we were taking the appropriate action following discussions with our employment solicitors and taking into account [Smith’s] previous disciplinary record” (note to self:  when all else fails, blame the lawyers!).