It’s hard to know what to say

Employers may need to tighten up their social media policies on equality in the light of a recent decision

Paul Reeves

The debates across the country in the lead-up to the House of Commons passing the Marriage (Same Sex Couples) Bill raises an interesting question as to whether all laws on equality tend to run ahead of ­social trends. Concepts that appear outlandish to certain sectors of ­society when first proposed as law would conversely seem alien to a new generation not to have always been that way.

In light of the bill there has been a lot in the press about teachers being disciplined if they do not teach in a positive way the notion of marriage including a union between two men or two women, but will our primary school generation be staggered by the suggestion in 30 years’ time that marriage was previously limited to heterosexuals? As recently as 50 years ago it was expected that middle-class women would give up work when they got married. Today, there are few in Western society who would think that such behaviour is appropriate.

While religious beliefs are often the reason for opposition to the bill, it also goes against some people’s secular beliefs, such as their moral or conscientious beliefs. The bill follows closely on the heels of the European Court of Human Rights’ decision in Eweida & Ors v United Kingdom. In light of both of these, employers, particularly those in the public sector, should review their policies and practices to ensure they successfully balance the potentially conflicting views and beliefs held within their workforce and also between their employees and their clients, customers and service users. Where an employer is interfering with an employee’s right to manifest their religious beliefs, (and potentially other beliefs) it must ensure it has a legitimate aim for doing so and that it is proportionate. That is a judgement call that is not always easy to make.

Differing attitudes to the bill also serve to remind employers to have tightly worded social media policies detailing how employees should express their views on social media sites. In 2012, the High Court in Smith v Trafford Housing Trust held that a Christian employee was entitled to express his views against gay marriage on Facebook and that the trust was wrong to discipline him for such actions even though it was identified as his employer on the Facebook page and 45 of his Facebook friends were colleagues, one of whom was offended by such comments. The High Court held there was not the “necessary work-related context” to his postings to fall within the equal opportunities policy dealing with not making colleagues feel “uncomfortable, embarrassed or upset” and that causing offence is sometimes a necessary price to pay for freedom of speech.

Given this case, social media policies should direct employees to state clearly that any views expressed are their own personal views and ideally should not refer to their employer on their profile.

If an employer wants the principles of its equal opportunity policy to extend to an employee’s social media activity it needs to say so in either its equal opportunities policy or its social media policy.