Employer breached contract by demoting employee for Facebook comments

David Reid
23rd Nov 2012

The High Court has ruled that demoting an employee for making personal comments on Facebook about gay marriage constituted a breach of the employment contract. However, the damages awarded were restricted to the losses incurred during the contractual notice period.

Employment contract

In this case, the employee was a manager. He posted two comments on his personal Facebook account. One stated that ‘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 its rules on places of faith and conscience.’


The employer’s position was that the comments breached its Equal Opportunities policy and constituted gross misconduct. Furthermore, it had the contractual right to demote him under its disciplinary procedure.


The Court found that the employee’s actions did not constitute misconduct because:

  • The employee’s Facebook account was clearly for his own personal use
  • It was clear that his comments were not posted on his employer’s behalf
  • His expression of his personal views was moderate and respectful
  • The post was made out of working hours
  • The employer’s policy in relation to employees’ use of Facebook was not sufficiently clear to warrant the application of the employer's disciplinary policies
  • His colleagues had each made a choice to be his friend on Facebook and so implicitly consented to seek his views

Given that there was no misconduct, the Court found that there had been a breach of contract. The next issue was to assess the damages that flowed from that breach.


The employee argued that by accepting the demoted role under protest he had affirmed the contract without waiving his rights to claim damages for the difference in his salary from the date of the breach to the present day. However, the Court found that the breach amounted to a dismissal in law thus bringing the original contract to an end. Consequently, damages were limited to his difference in earnings during the 12 week contractual notice period. This was £98.


The Court admitted disquiet about the unfairness of this financial outcome and suggested that if the employee had also lodged a claim of unfair dismissal in time with the Employment Tribunal, he may have been compensated more equitably.


The full case can be found here.

Case name: Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)

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