Smith v Trafford Housing Trust  EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains  EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
It is also possible to invoke the HRA against a rule of common law in a purely private case. This is a consequence of the designation by the Human Rights Act of courts as “public authorities”, which are therefore obliged to act compatibly with the Convention under Section 6 of that Act. But in the Facebook case, whilst counsel referred to employees’ “rights to freedom of expression and to manifest their religious beliefs” the arguments did not proceed along the lines of human rights as such. As Briggs J said in Smith,
this is not a case in which his convention rights are sought to be enforced directly, since the Trust is not a public authority.
This stands in stark contrast with Elias LJ’s detailed analysis in Turner of Article 8 cases that are relevant to employment disputes and his observation that the Strasbourg Court “has held that taking action which jeopardises an individual’s right to undertake a range of future employments is, if sufficiently restrictive, enough to engage Article 8 both because of the impact on employment and on social relationships.”
Nevertheless, despite the absence of a public authority, the judgment in favour of the claimant in the Facebook case was firmly based on principles of free speech and conscience. So one might be tempted to conclude, on comparing these two cases, that the distinction between “public authority” cases (where the Human Rights Act applies) and purely “private” cases (where it doesn’t, except for the two exceptional circumstances created by Sections 3 and 6) has melted away. Or, to put it less contentiously, the principles underlying Convention rights are so integrated in the common law that it is no longer necessary to grapple with the public/private divide when reaching a judgment in a dispute between private parties.
Here is a short summary of both cases.
Smith v Trafford Housing Trust  EWHC 3221 (Ch), Briggs J
A housing trust demoted one of its managers after he made comments on his Facebook page opposing gay marriages in church. The claimant employee, a practising Christian and occasional lay preacher, was subject to disciplinary proceedings after commenting on his Facebook wall page, in response to a news item that gay church marriages were set to be approved, that this was “an equality too far” and after stating, in response to a Facebook enquiry from a work colleague, that the bible specified that marriage was for men and women and that the state should not impose its rules on places of faith and conscience. The disciplinary proceedings resulted in a finding of gross misconduct, the claimant’s demotion and a reduction in pay.
The claimant employee sought damages for breach of contract from the defendant employer. The issue was whether the employee’s Facebook postings amounted to a breach of the employer’s Code of Conduct and/or its Equal Opportunities Policy. The housing association contended that
- the postings were activities which might bring it into disrepute, contrary to the Code of Conduct;
- by his postings, the claimant was promoting his religious views, contrary to that part of the Code of Conduct which dealt with relationships with customers, members of the public and colleagues;
- the claimant was failing to treat fellow employees with dignity and respect, including being non-judgmental in approach, and was engaging in conduct which might make another person feel uncomfortable, embarrassed or upset, contrary to the Equal Opportunities Policy and the Code of Conduct.
The association relied, in particular, on this passage in the Code of Conduct:
Employees should not engage in any activities which may bring the Trust into disrepute, either at work or outside work. This includes not engaging in any unruly or unlawful conduct where you are or can be identified as an employee, making derogatory comment about the Trust, its customers, clients or partners or services, in person, in writing or via any web-based media such as a personal blog, Facebook, YouTube or other such site.
Briggs J rejected all the defendant’s arguments and gave judgment for the claimant.
The court’s reasoning
The claimant’s postings about gay marriage in church were not such as did, or even could, bring the housing association into disrepute. His comments on gay marriage in church appeared among entries about sport, food, motorcycles and cars – in this context, no reasonable reader of Mr Smith’s Facebook wall page could rationally conclude that his two postings about gay marriage in church were made in any relevant sense on the Trust’s behalf. Briggs J had two main reasons for that conclusion.
The first is that Mr Smith’s brief mention at the top of the page that he was employed as a manager by the Trust (as part of a note form CV which also identified his school, his place of residence, his marital status and his date of birth) could not possibly lead a reasonable reader to think that his wall page consisted of, or even included, statements made on his employer’s behalf. A brief mention of the identity of his employer was in no way inconsistent with the general impression to be gained from his Facebook wall, that it was a medium for personal or social, rather than work related, information and views.
The second reason was that it was obvious from the entries on the claimant’s wall for the period in question as a whole, that he used Facebook for personal and social rather than work-related purposes. His moderate expression of his particular views about gay marriage in church, on his personal Facebook wall at a weekend, could not sensibly lead any reasonable reader to think the worst of the association for having employed him as a manager.
The judge dismissed the contention that Mr Smith was in some way promoting his religious views, as prohibited by the Code of Conduct. The opening phrase “an equality too far” and the expression of the claimant’s partly religious and partly political views about gay marriage in church which then followed was prompted by an invitation from one of his Facebook friends to explain his viewpoint. It was at that stage part of a Facebook conversation rather than anything which could sensibly be described as promotion. This was an entirely different matter to the expression of such views in a more targeted form of communication:
the critical difference between a targeted email (or for that matter inviting his workplace colleagues for a drink at the local pub for the purpose of enabling religious or political promotion outside work) and Mr Smith’s Facebook is that it was his colleagues’ choice, rather than his, to become his friends, and that it was the mere happenstance of their having become aware of him at work that led them to do so. He was in principle free to express his religious and political views on his Facebook, provided he acted lawfully, and it was for the recipients to choose whether or not to receive them.
Although no reference was made to Articles 9 or 10 as such, the judge observed that the right of individuals to freedom of expression and freedom of belief, taken together, meant that they were in general entitled to promote their religious or political beliefs, as long as they did so lawfully. Of course, an employer could legitimately restrict or prohibit such activities at work, or in a work-related context, but it would be “surprising” to find that an employer had, by the incorporation of a code of conduct into the employee’s contract, extended that prohibition to his personal or social life (para 66). The claimant’s Facebook wall was inherently non-work related, and his Facebook was an aspect of his social life outside work. The prohibition on the promotion of political and religious views in the Code of Conduct did not, as a matter of interpretation and application, extend to an individual’s Facebook wall. In any event, the postings did not amount to “promotion” .
To construe the provisions in the Code of Conduct and Equal Opportunities Policy which required employees to treat colleagues with dignity and respect and to refrain from conduct which might make others feel uncomfortable, embarrassed or upset as applying to every situation outside work where an employee came into contact with one or more work colleagues would be to impose a fetter on his freedom of speech in circumstances beyond those to which a reasonable reader of the Code and Policy would think they applied. On any view, their main application was to circumstances where the employee was working for the defendant employer. The claimant’s use of his Facebook involved his work colleagues only to the extent that they sought his views by becoming his Facebook friends, and that did not detract to any significant extent from the essentially personal and social nature of his use of it as a medium for communication. In any event, his postings were not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence.
In the circumstances, the association did not have a right to demote the claimant by reason of his Facebook postings and that demotion constituted a breach of contract. It also amounted to a wrongful dismissal. Given that the defendant would have acted as it had but upon 12 weeks’ notice, the correct measure of damages was the very small difference between the claimant’s contractual salary and the amount actually paid to him during the 12 weeks following the assumption of his new role. The injustice he had suffered, although very real, was unfortunately something which the court was unable to alleviate by an award of substantial damages.
Turner v East Midlands Trains  EWCA Civ 1470, Court of Appeal
Mrs Turner had worked for East Midlands Trains for 12 years as a train conductor. The ticket machines issued to conductors sometimes produced faulty tickets which could not be sold to customers. When the defendant employer discovered that she had issued 132 faulty tickets during a period when other conductors had issued 20 or less, their suspicions were raised. They believed she had manipulated the ticket machine to produce faulty tickets and had fraudulently sold them to members of the public, and kept the proceeds. They dismissed her for misconduct and the employment tribunal concluded that the evidence before East Midlands Trains was sufficient to justify its conclusions and it had therefore acted within the band of “reasonable responses” test set out in British Home Stores Ltd v Burchell  I.C.R. 303.
The appellant accepted that the respondent employer’s investigations were adequate by the standards of domestic unfair dismissal law, but submitted that the dismissal had damaged her reputation thereby engaging her rights under the Convention. She argued, in other words, that the band of reasonable responses test did not meet the requirements of Article 8.
Her appeal was dismissed.
The Court of Appeal’s reasoning
Elias LJ accepted that Article 8 interests were engaged, because matters bearing on the culpability of the employee involved their private life. In Niemitz v Germany the Strasbourg Court established the general principle that Article 8 extends to the workplace: “respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings” and that it would extend to activities of a professional or business nature. It is also established that the maintenance of relationships with others may be an aspect of Article 8 private rights: see for example Connors v United Kingdom (2005) 40 EHRR 9 at para 82.
And it made no difference that the employer was not a public authority. When an employment tribunal has to determine whether an employer has acted fairly within the meaning of section 98 of the Employment Rights Act 1996, it applies what is colloquially known as the “band of reasonable responses” test. In other words, it has to ask whether the employer acted within the range of reasonable responses open to a reasonable employer.
The question was whether that test had to be modified in circumstances where the employee’s rights under Article 8 of the European Convention on Human Rights are engaged as a consequence of the dismissal.
On the other hand, it was very difficult to see how a procedure which could be considered objectively fair if adopted by a reasonable employer could nonetheless be described as unfair within the meaning of Article 8. The band of reasonable responses test allowed for a heightened standard to be adopted where those consequences were particularly grave ( X v Y (Employment: Sex Offender)  EWCA Civ 662). The assessment of the procedure was made by the tribunal, not by the employer, and in making it the tribunal was adopting an objective test of whether the employer had acted as a reasonable employer might do.
Accordingly, there was no breach of Article 8. That conclusion was strongly reinforced by the fact that in the employment sphere, the Strasbourg court had recognised that some leeway should be given to the employer in the discharge of his powers of dismissal (Palomo Sanchez v Spain (28955/06)  I.R.L.R. 934). The band of reasonable responses test provided a sufficiently robust, flexible and objective analysis of all aspects of the decision to dismiss to ensure compliance with Article 8, nor did it fall short of the procedural safeguards required by the provision. Even if Article 8 imposed higher procedural safeguards than were afforded by domestic law, nothing turned on that in the instant case as the decision reached would inevitably have been the same. Elias LJ rejected the appellant’s submissions with regard to proportionality with this wintry observation:
I reject the appellant’s submission that the concept of proportionality is either a helpful or relevant one when considering the fairness of the procedures. The Strasbourg court does not use that language when referring to Article 8 procedural safeguards; it uses the language of fairness, a concept universally adopted when speaking of procedures. Recourse to a concept of proportionality – a word not found in Article 8(2) itself – in my judgment simply obfuscates and potentially complicates the essentially simple concept of a fair procedure.
- and Sedley LJ’s reminder that in these and many other cases there is no silver bullet to be found in Convention arguments:
there is no article 8 watershed – that is to say, no sudden point at which a potential denial of the respect owed to private life raises the procedural stakes and turns a fairness inquiry into a proportionality inquiry.
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