Mr Adrian Smith v Trafford Housing Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Briggs |
| Judgment Date | 16 November 2012 |
| Neutral Citation | [2012] EWHC 3221 (Ch) |
| Docket Number | Case No: 1IR54453 |
| Court | Chancery Division |
| Date | 16 November 2012 |
[2012] EWHC 3221 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
(Transferred from the Manchester County Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Briggs
Case No: 1IR54453
Mr Hugh Tomlinson QC (instructed by Aughton Ainsworth) for the Claimant
Mr Andrew Short QC (instructed by Devonshires Solicitors) for the Defendant
Hearing dates: 18 and 19 October 2012
Introduction
During the morning of Sunday 13 February 2011 Mr Adrian Smith, the claimant in this matter, read on his computer a news article on the BBC news website headed:
"Gay church 'marriages' set to get the go-ahead'."
Mr Smith is a practising Christian and occasional lay preacher. Thinking that the BBC article and his response to it might interest some of his many Christian friends, particularly in Africa, at 12.18 on the same day he posted a link to the BBC article on his Facebook wall page, together with the following comment, under his name:
"an equality too far."
At 15.13 on the same day one of his Facebook friends, a Ms Julia Stavordale, posted this comment on his Facebook wall:
"Does this mean you dont approve?"
Miss Stavordale was one of Mr Smith's colleagues at work. They were both employed by the defendant in these proceedings, the Trafford Housing Trust ("the Trust").
Later that day, at 20.57, another Facebook friend and colleague at work, Alison Hawkins, posted the comment:
"Dont think we had better have you two in the same room some how!"
Ms Stavordale responded, at 21.04:
"Alison … just interested in Adrian's viewpoint … no fisticuffs … promise!!"
After a pause for thought, at 22.19 on the following day, Mr Smith responded as follows:
"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."
For making those two comments Mr Smith was suspended from work, on full pay, on 17 February, made the subject of a disciplinary investigation and then disciplinary proceedings leading to a hearing on 8 March, at the end of which he was told that he had been guilty of gross misconduct for which he deserved to be dismissed. Due to his long record of loyal service he was told that he was with immediate effect only to be demoted to a non-managerial position with the Trust, with a consequential 40 per cent reduction in his pay, phased over 12 months. Mr Smith appealed. The appeal was heard on 31 March and, on 5 April, in substance dismissed, but with an extension of the phasing-in of his salary reduction from one to two years.
Mr Smith did not accept that he had been guilty of gross, or any, misconduct in posting those two comments on his Facebook wall page. Although he has continued to work in the more junior non-managerial role assigned to him, he claims that it was a breach of contract for the Trust to demote him and substantially to reduce his pay, when he was not guilty of any misconduct. By these proceedings, commenced in the Manchester County Court, he seeks damages for breach of contract. He did not commence proceedings for unfair dismissal in the Employment Tribunal, and does not claim to have been dismissed at all.
For its part, the Trust maintains that, by making those two postings on a Facebook page which identified him as one of its managers, Mr Smith committed breaches of the Trust's code of conduct for its employees, and acted contrary to the Trust's equal opportunities policy. Alternatively, the Trust says that, if it was a breach of contract to demote him, Mr Smith waived the breach by taking up his non-managerial post. In the further alternative, the Trust says that its liability for damages is limited to the difference between his original and reduced pay for his twelve week notice period, in a net amount of £98.
Mr Hugh Tomlinson QC for Mr Smith submitted in his skeleton argument that:
"This case raises important issues of principle concerning the extent to which it is proper or appropriate for employees to be disciplined for exercising their rights to freedom of expression and to manifest their religious beliefs."
Although those rights of Mr Smith are undoubtedly relevant in the context of the interpretation of his employment contract with the Trust, this is not a case in which his convention rights are sought to be enforced directly, since the Trust is not a public authority. Nor is it in terms a case about the propriety or appropriateness, or even the fairness, of disciplinary action, since Mr Smith has not sought to invoke his statutory rights under the Employment Rights Act 1996: contrast X v Y [2004] ICR 1634.
Nor is this a case in which the primary facts are significantly in issue. There are three main issues, or groups of issues. The first, being an issue as to the interpretation and application of the employment contract between the parties, is centred upon questions as to the application of the Trust's code of conduct and equal opportunities policy to Mr Smith's use of his Facebook account. The second is whether, if applicable, the code of conduct or equal opportunities policy were contravened by his making the two postings which I have described. The third is as to the measure of damages if, by demoting Mr Smith, the Trust acted in breach of contract.
Context is vital to a proper understanding and determination of at least the first two issues. For that reason it is necessary for me to describe the almost entirely uncontentious facts in some detail. The evidence is mainly documentary, but I was assisted by witness statements from, and cross-examination of, Mr Smith himself and the three employees of the Trust centrally engaged in the conduct of the disciplinary process against him. I consider that all four witnesses were doing their honest best to assist the court.
The Facts
Trafford Housing Trust Limited ("the Trust") is a private housing trust, being a company limited by guarantee and formed for charitable purposes. It succeeded to the housing functions and responsibilities of the Metropolitan Borough Council of Trafford ("Trafford Council") in 2004, and now owns some 9,100 homes across Trafford, with a rental turnover of some £31m per annum.
The Trust's customer base (its residential tenants and their families) and its workforce display wide diversity in terms of ethnic origin, sexual orientation, religion and gender. Its workforce consists of approximately 330 employees.
Mr Smith, who is now aged 55, became a Housing Manager with the Bury Council in October 1993. In November 2003 he became a Neighbourhood Housing Manager for the Trafford Council. Accordingly, he became an employee of the Trust from the moment of its take-over of the Trafford Council's housing stock in March 2005 under the TUPE Regulations 1981, with an initial job title of Neighbourhood Manager, and an initial salary of £25,938 per annum.
In November 2006 Mr Smith signed a new contract of employment with the Trust. Having inherited its workforce on the terms of their contracts with the Trafford Council, the Trust initiated a wholly fresh form of contract from 2006, so that the detailed terms of its predecessor (and its public authority origin) are of no continuing relevance.
Mr Smith's contract (which remained in force substantially un-amended until 2011, having been signed by him on 20 November 2006), describes him under the job title as "MANAGER, HOUSING". By clause B(c) the new contract replaced all previous terms and conditions of employment with the Trust. Clause D, headed Employee Duties And Obligations, provided so far is relevant as follows:
" (a) You are required to perform the duties and activities as may be reasonably associated with your job role in an efficient and acceptable manner taking into account the stated values of the Trust and the attached Code of Conduct.
(b) You may also be required as a condition of employment to undertake duties not indicated by the job title or in the job description which may reasonably be required by the Trust.
(c) You must ensure that you are familiar with the law and regulation as it applies to your duties and that you comply at all times. You should also familiarise yourself with, and adhere to, all Trust policies and procedures and standards of performance asking for clarification if required. …"
Section L, headed Grievance/Disciplinary Procedures, provided at sub-clause (c):
"Where the Trust believes a breach of discipline has occurred the procedures set out in the Trust's Disciplinary procedures will apply. If you are dissatisfied with the disciplinary decision, short of a decision to dismiss, you can apply in writing outlining the reasons why the decision is unfair, to your Senior Manager. In the case of dissatisfaction with a decision to dismiss, you can apply in writing outlining the reasons why the decision is unfair to your Director."
By section P(b) the contract provided for one month's notice of termination by either party. Nonetheless it is common ground that, pursuant to section 86(3) of the Employment Rights Act, Mr Smith's contractual notice period in 2011 was twelve weeks.
The disciplinary procedures referred to in clause L(c) of Mr Smith's contract are set out in a written Grievance and Disciplinary Policy ("the Disciplinary Policy"), having been issued in January 2006 and revised in September 2010. Section B governs disciplinary procedure. Sub-section 1, headed Disciplinary Principles, commences as follows:
"(a) Disciplinary action against an employee...
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