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Lessons from the Lineker affair

Fudia Smartt, Employment Partner - Spencer West

The BBC’s reaction to Gary Lineker’s tweets about the Government’s latest immigration policy raises lots of questions. One of the most nuanced is around employee use of social media and sharing personal views which may have a detrimental impact on their employer.

We live in polarising times. Since Brexit, it has been clear that there is no allowable grey area in public discourse on certain topics; you are either a “woke” social justice warrior, or an illiberal TERF. Amidst this backdrop we have the pre-eminence of social media, where an employee’s tweets, Facebook status updates, TikToks, Instagram post, or any other forms of social media engagement can have significant, negative ramifications for both them and their employer.

This is amply shown by the recent furore surrounding Gary Lineker’s tweets. In response to the Home Secretary’s comments regarding her new immigration bill, which is aimed at stopping people crossing the English Channel on small boats, Mr Lineker challenged her assessment that the UK is being overwhelmed, and stated that the proposed new policy was “cruel”, with the language being used not being dissimilar to that used in Germany in the 1930s.

Whenever Nazism is invoked (whether directly or obliquely), it leads to a strong reaction, and that was certainly was the case here where Mr Lineker’s detractors found his comments to be offensive, whereas others felt it entirely appropriate and fitting. A Twitter storm followed, with Mr Lineker refusing to delete the tweet.  Given that Mr Lineker is a presenter on the BBC – the nation’s public broadcaster – it led to many complaints that he had breached its impartiality rules and should therefore be censured as a result. Nevertheless, Mr Lineker refused to delete and/or apologise for the tweets, and consequently was asked not to present Match of the Day last weekend (11/12 March).

Due to the support Mr Lineker received amongst other Match of the Day presenters who refused to take his place (and therefore potentially jeopardising the upcoming FA Cup coverage), the BBC capitulated, and Mr Lineker will return to presenting the show without reprimand, or a requirement that he delete the tweets in question.  Since then, there has been much discussion on the applicability and enforceability of the BBC’s impartiality rules. However, I am more intrigued by the legal tension social media has brought to the forefront: is it possible for employees to espouse their polemic personal views on their private accounts without bringing their employer into disrepute?

Bringing your employer into disrepute
It has long been recognised that an employee’s conduct, including outside of business hours, can negatively impact an employer and damage its reputation.  Consequently, employers can take into account employees’ outside conduct, in determining if they have committed acts of misconduct. With the explosion of social media, the ability for an employee’s conduct to damage the reputation of its employer has grown exponentially.  An inappropriate social media post can lead to a groundswell of condemnation, reaching potentially (often unintentionally) millions of viewers – known as “going viral”.

In examining the cases involving social media, the employment tribunals appear to consider the following: (i) if use of social media is work-related; (ii) that employers should not take a heavy-handed approach in determining the damage/potential damage to their reputation, simply because the material does not place them in the best light; and (iii) the information given to employees about corporate image and reputation, and the employer’s expectations regarding use of social media.  These cases are highly fact-sensitive, which perhaps explains why it is hard to discern a judicial trend in dealing with such matters, where similar cases can have very different outcomes.

What about religion or belief discrimination?
Under the Equality Act 2010, it is unlawful to discriminate someone because of religion and/or belief, and the manifestation of said beliefs, including their expression. However, there are a plethora of cases which show the difficulty in relying on this protected characteristic, particularly where someone’s views are deemed offensive.

As helpfully summarised in the EAT judgment of Grainger plc and others v Nicholson [2010] IRLR 4, for a religious or philosophical belief to be protected it must:

  • be genuinely held;
  • a belief, not an opinion or viewpoint based on the present state of information available;
  • be a belief as to a weighty and substantial aspect of human life and behaviour;
  • attain a certain level of cogency, seriousness, cohesion, and importance;
  • be worthy of respect in a democratic society; and
  • not be incompatible with human dignity and not conflict with the fundamental rights of others.

The above criteria are not easily satisfied. For instance, there have been recent cases which show that changing societal attitudes towards transgenderism mean that refusing to use someone’s preferred pronouns (for example) will not be protected on the grounds of religion/belief (Mackereth v DWP [2022] EAT 99).

Further, in Gibbins v British Council ET/2200088/2017, Mrs Gibbins was unsuccessful in alleging philosophical belief discrimination (republicanism) in response to her dismissal for making off-colour remarks about Prince George on Facebook.

So where next?
Not many employees will be in the same position as Mr Lineker; where their fame, connections, and support by large swathes of the public will protect them from reprimand (and potentially dismissal) in such circumstances. It will, therefore, be safer for employees to avoid posting anything of a polemical nature. This is particularly so, where employers have carefully drafted social media policies which set out their conservative approach to avoid any potential social media blowback.

While this is sensible, and I would certainly advise employers to draft such policies and for employees to follow them – I remain uneasy with the current situation. Freedom of speech and expression is sacrosanct to a democratic society. And while it is understandable that employers want to avoid going viral for the wrong reasons, what space is there for differences of opinion?

Given how personal and sensitive many of the topics discussed on social media can be, there are no easy answers to this. However, as we live in an age which encourages authenticity and transparency, this is at odds with the “avoid offense at all cost” approach to social media posts, which employees would do well to follow.

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