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Support it on Earth, oppose it on Libertaria

I am glad that Adrian Smith has won his case against his employer, Trafford Housing Trust. These links give the story:

Christian wins case against employers over gay marriage comments (The Guardian)

Social media, employment, religious views and freedom of speech (Law & Religion UK, a specialist blog.) This link makes that point that although Mr Smith’s Facebook page did identify him as an employee of the Trafford Housing Trust, no reasonable observer would suppose that Mr Smith’s opinions represented the Trust’s opinions.

Facebook gay wedding comment man wins demotion case (BBC)

Adrian Smith lost his managerial position, had his salary cut by 40%, and was given a final written warning by Trafford Housing Trust (THT) after posting in February last year that gay weddings in churches were “an equality too far”.

The comments were not visible to the general public, and were posted outside work time, but the trust said he broke its code of conduct by expressing religious or political views which might upset co-workers.

Given that “might upset co-workers” could apply to just about any conceivable opinion, and that his actual words were almost comically mild, I am not surprised that there was a widespread sense that Trafford Housing Trust could not be allowed to set a precedent. In the end the judge went so far as to regret in public that for technical legal reasons he could not award Mr Smith any more than a token sum on top of his old job back.

All in all this was one instance where a probing attack by the Creatures from the Dungeon Dimensions was overconfident and was repulsed. I think it likely that the same will prove true of the UKIP fostering case mentioned in Johnathan’s post from Sunday.

Nonetheless, I feel obliged to note that in a free society employers would have the right to make their offer of a job conditional upon an employee shutting up utterly about his personal opinions, or vowing slavish adherence to the opinions of his employers however stupid, or wearing a pink carnation up his nose, or being black, homosexual, Muslim, Nazi or all of the above. Not that I would believe such demands would be at all common. Most people, naturally, would elect to work for a less controlling employer – and in a free society we would not be in the position that so many jobs were in the gift of the government or its proxies. The Trafford Housing Trust is one of these deniable chimeras that have spawned under every rock lately; half “charity”, half government.

16 comments to Support it on Earth, oppose it on Libertaria

  • Gib

    I don’t understand why it’s good that the company doesn’t have a choice about whether to continue to employ that guy.

    You say that “in a free society employers would have the right…”. Well, are you for or against that free society? Because it sounds like you’re against it.

    Or is it because the company is part government, that you think they have to operate under special rules and employ people they don’t want to?

  • J.M. Heinrichs

    For some, reading comprehension is hard …

    No, Gil, that’s not what she said, it’s not what she meant, but it is indicative of a particular lack of sensitivity to ideas which may upset one’s tummy at bedtime. Unless you are trying to espouse a transgressively modern variant of Calvinism.


  • 'Nuke' Gray

    Him being a Christian means he’s automatically in the wrong! I bet it would have been Okay for a muslim to make such remarks.
    Gib, the trust was claiming that he broke the terms of their contract, so they demoted him because of that. A libertarian can certainly support voluntary contracts, and agree to them being enforced. What’s your beef?

  • 'Nuke' Gray

    Sorry, my fault! not contract, but their code of conduct. Still, that should only apply during his working hours, not when he’s off-duty.

  • Allan Ripley

    Natalie, I do enjoy your posts. You have a been a bit more active lately, I think, and I hope the bee that buzzes you keeps on doing so.

  • Gib

    ‘Nuke’, my beef is that it sounds like people here think it’s good he won the case. Whereas I think it’s bad, due to it not being consistent with the freedom of the company to decide who it wishes to continue to employ.

  • Aetius

    Gib, the Trafford Housing Trust is effectively part of the state, and all parts of the British state pursue the same Frankfurt school Marxist agenda. If the Trust had won, then other government departments, quangos, fake charities and pressure groups would have taken note and it would have become standard procedure for them to persecute even the mildest expressions of private disagreement with political correctness.

  • Gib

    Thanks Aetius, I get it now.

  • Snorri Godhi

    Excellent analysis.
    The fact that the THT is effectively a branch of government is by itself a good reason to prevent them from firing people for reasons other than poor job performance.
    However there seems to be another factor too: Smith allegedly wrote that gay weddings **in churches** were “an equality too far”.
    Surely the government should not be able to dictate what kind of weddings can take place **in churches**!

  • Surely the government should not be able to dictate what kind of weddings can take place **in churches**!

    Don’t you weirdos over in the UK still have a state relgion? Or has the CoE lost that status along the lines of the Church of Sweden?

  • Johnnydub

    “Surely the government should not be able to dictate what kind of weddings can take place **in churches**!”

    This is my main objection to gay marriage. I’m not bothered about gay people’s choices, it’s more the fact that 10 minutes after this law is signed, a gay couple are going to take my local catholic church to Court under the equality legislation.

    I believe in the separation of church and state – and it goes both ways…

  • I agree with Aetius’s comment as to the reason’s why it would have been very bad for free speech if the Trust had won. In some parts of the UK more than half of all jobs are state or quasi-state jobs. To have all state employees afraid to venture a non-progressive opinion would have meant millions of people would have been deprived of / intimidated from free speech. It also would have had a chilling effect on the free speech of private employees if it were held that a code of conduct reached that far into private life. Not that I would oppose the existence of job contracts that do interfere in private life, but the fact is that most people never signed up for that.

    Which brings me to the fact that this was an argument as to what the Trust’s code of conduct covered, not about whether it was legitimate for such a thing to exist. Bear in mind that the Trust did lose the case! Even in Libertaria there will be disputes where one party says, “My contract never specifically forbade me from doing X” and other party says, “Any reasonable person would know that wasn’t allowed”. Human beings don’t have time to read or write contracts that cover every possible eventuality.

  • On gay marriages in church, my understanding is that all parties recognise that the C of E is in a unique position because of it being the Established Church. I haven’t read of any mainstream left wing figure demanding that churches in general should be forced to allow gay marriages – although I most definitely take Johnnydub’s point about the slippery slope. The problem is that the C of E is, for historical reasons, state-backed, so the argument that it has to obey state rules is much stronger than for other churches. Quite a lot of conservative Anglicans who used to hate the idea (indeed the sine qua non of conservative Anglicanism used to be keeping Anglicanism in the State to which it had become accustomed) now seem to be moving towards the idea of disestablishment for this reason; which is not to claim that disestablishment is a conservative position per se.

    Naturally this movement has its opponents, so antidisestablishmentarianism will soon regain its position as the longest English word in regular use in the newspapers.

  • Paul Marks

    Yes – I agree with Natalie and Aetius.

  • Laird

    Aetius and Natalie make the point that the Trafford Housing Trust “is effectively part of the state” and celebrate this decision on that basis. Which I can accept. However, the linked article in the Guardian makes no such point, but instead explicitly (in both the headline and the body) reports that this was a ruling against Smith’s “employer”; the quasi-governmental nature of that employer is never mentioned. From the small bits of the opinion printed it appears that the judge viewed it that way, too; this was not treated as a “free speech” case (which would properly go against governmental interference) but as a simple breach of contract case. And seen in that light it is clearly a decision against an employer’s freedom of association. My suspicion is that this case will be broadly interpreted not as prohibiting governmental (or quasi-governmental) agencies from limiting their employees free speech rights but rather as banning any sort of employer regulation of employee behavior outside of the workplace, regardless of the nature (private or public) of that employer or how detrimental such behaviour might be to the reputation or business of the company.

    Of course, I might be reading too much into it, and the case will be narrowly construed. Had the Code of Conduct been more explicit in what it banned (“expressing religious or political views which might upset co-workers” is vague in the extreme), or if Smith had had an express employment contract which clearly outlined the limitations on his non-workplace free speech, the demotion might have been upheld. We don’t know. But from the little I know from this article the result makes me uneasy.

    I will say that Mr. Smith had quite an eloquent statement at the end of that article, and I hope that message is taken to heart by the Prime Minister. And I thought that the comment by the chief executive at Trafford Housing Trust was extraordinarily snarky (“we believed we were taking the appropriate action following discussions with our employment solicitors and taking into account his previous disciplinary record”, implying that Smith had had disciplinary problems in the past). Defiant to the last, I suppose.

  • hovis

    The creepiest thing about this case was the the comments were NOT VIEWABLE TO THE GENERAL PUBLIC which doesnt seem to feature in the comments – I’m aazed libertarians arent more outraged.