Judge backs right of social-media critic of gay marriage

23 November 2012

GAVIN DRAKE

Not for the money: Adrian Smith outside the High Court 

Not for the money: Adrian Smith outside the High Court 

A SOCIAL-HOUSING group based in Manchester acted in breach of contract when it demoted one of its managers for posting a comment on Facebook opposing gay marriage in churches, a judge has ruled. But the High Court judge who made the decision said that "justice has not been done", because he could award the manager only about £100 in compensation.

Mr Justice Briggs said that he felt "real disquiet about the financial outcome of this case", after finding in favour of Adrian Smith, who was demoted by the Trafford Housing Trust, with a 40-per-cent reduction in his pay, after he described the possibility of government plans to allow churches to host civil-partnership ceremonies as "an equality too far".

The Trust said that Mr Smith's actions could have brought the organisation into disrepute; that he had breached its equal-opportunities policies by promoting religious and political views; and that some staff members could have been offended by his comments.

But Mr Justice Briggs said: "Mr Smith's postings about gay marriage in church are not, viewed objectively, judgmental, disrespectful, or liable to cause upset or offence. They are widely held views, frequently to be heard on radio and television, or read in the newspapers."

The judge said that by demoting Mr Smith, and docking his pay by 40 per cent, the Trust had effectively dismissed him and re-employed him on a new contract. Established employment law was that employees in such circumstances were entitled to receive only the pay that would have been earned during the contractual-notice period. In Mr Smith's case, this was 12 weeks, but the Trust had phased in the reduction in pay, and so Mr Smith would be entitled to an award of only about £100.

"The breach of contract the Trust committed was serious and repudiatory," the judge said. "A conclusion that his damages are limited to less than £100 leaves the uncomfortable feeling that justice has not been done to him in the circumstances."

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Mr Smith would have been able to claim "substantial compensation" at an employment tribunal, the judge said, but, by the time Mr Smith had found funds to fight the case, the three-month deadline for action in the employment tribunal had passed.

Mr Smith was supported by the Christian Institute's legal defence fund. Responding to the judgment, the Institute's head of communications, Mike Judge, read a statement on Mr Smith's behalf: "I never did this for the money. I did this because there is an important principle at stake."

Trafford Housing Trust said that it "fully accepted the court's decision". "I have made a full and sincere apology to Adrian," the chief executive, Matthew Gardiner, said. "This case has highlighted the challenges that businesses face with the increased use of social media, and we have reviewed our documentation and procedures to avoid a similar situation arising in the future. Adrian remains employed by the Trust."

The gay-rights campaigner Peter Tatchell welcomed the ruling. "In a democratic society, Adrian has a right to express his point of view, even if it is misguided and wrong," he said. "Freedom of speech should only be limited or penalised in serious circumstances, such as when a person incites violence against others. Mr Smith's words did not cross this threshold.

"I wish Adrian supported gay marriages in churches, but he is not a nasty homophobe. It was always absurd to suggest that he was some kind of bigot. He's not."

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