Opinion & Analysis
Freedom of expression is a core value of our democratic society. We value it not only in our law, but also in our dealings with each other. But what happens when an employee's right to express themselves conflicts with their employer's right to not be brought into disrepute and to have trust and confidence in their employee?
OPINION: A recent English case involving a housing manager, Adrian Smith, and his controversial Facebook comments has reignited this controversy.
Smith had posted a link on his Facebook page to a BBC article headed "Gay church 'marriages' set to get the go ahead" and commented that he thought that gay marriage was "an equality too far". He made a subsequent post explaining his view.
Smith's employer, the Trafford Housing Trust, began disciplinary proceedings when one of his colleagues complained. The trust decided that Smith's comments brought it into disrepute, were offensive and caused his colleagues distress. As a result Smith had his pay cut by 40 per cent and he was demoted from his managerial role.
Smith felt the demotion was unlawful and in breach of human rights. He argued his comments were not visible to the general public and were posted outside work. His employer claimed that his comments broke its code of conduct because they expressed religious or political views that might upset co-workers.
The High Court at London found that Smith had done nothing wrong and that accordingly his demotion and salary cut were a serious and fundamental breach by the trust of its employment agreement with Smith. The High Court did not think that a reasonable reader of Smith's Facebook page could rationally conclude that his comments were made on behalf of the trust. It was also clear that his Facebook page was used for personal and social reasons. He won his case.
There are also cases in New Zealand where the facts are different and the employer has won. Take the case of John Terris, the former Labour MP and former mayor of Lower Hutt.
He was employed following the 2008 general election by Parliamentary Service to work for Paul Quinn, then a National MP.
Quinn was for the most part happy with Terris' work. However, Terris was involved in organisations outside his employment with Quinn. One of these was the Hutt Mana Charitable Trust where he was an elected trustee.
Terris made complaints to Crown Law Office about other trustees, many of whom were individuals Quinn wanted to keep good relations with. The employer asked Terris not to comment on these complaints publicly because Quinn would likely be associated with the comments. His employer asked him to consider the consequences of public statements on these people because of the likelihood of those statements being linked to Quinn.
However, despite that Terris made comments and as a result the working relationship with Quinn irreconcilably broke down. He was sacked.
Terris brought a claim for unjustified dismissal on the basis of the right to freedom of speech. He lost. Unfortunately for Terris his comments were likely to embarrass his employer and/or Quinn. The Employment Relations Authority determined that he should have been aware that his own political activities had to be such as they would not impact negatively on Quinn.
This does not mean that employees are barred from speaking their mind in highly politicised environments as shown by another case involving Teeny Lowe, a community development officer of the Tararua District Council. She was dismissed from her position after she publicly criticised the council's proposal to establish a trust to manage community development, a plan that would result in her redundancy.
The Employment Court held that her dismissal was unjustified. Lowe was in a high-profile position and her opinion was an important consideration for the public. The court did not think it was reasonable for the council to require her to take a diplomatic no-comment stance with respect to the proposal.
As you can see, the courts can adopt a tolerant attitude to people having some freedom of expression but there are clear limits. Lowe's case is somewhat of a high-water mark. Normally, views that conflict with the employer's views are likely to lead to termination.
When employees breach their employer's code of conduct or take action that seriously damages the relationship of trust and confidence with their employer, then they have gone too far and are likely to be dismissed.
However, employers should tread carefully when taking action against employees who speak out. Controversial comments do not automatically provide a licence to take disciplinary action.
This is an interesting area of the law. No doubt many more cases will emerge where the courts weigh up the rights of the employer and the ability of the employee to express themselves - particularly on social media such as Facebook.
- Peter Cullen is a partner at Cullen - the Employment Law Firm, and may be contacted at firstname.lastname@example.org
- The Dominion Post