The saga concerning Gary Lineker and the BBC appears now to be drawing to a close as the BBC confirms that Mr Lineker will return to screens this weekend as host of Match of the Day. This follows Mr Lineker’s (almost) week long suspension, which the BBC imposed following Mr Lineker’s Twitter post where he was seen to publicly criticise the UK Government’s proposed asylum policy.
The fall out between Mr Lineker and the BBC has generated mass public interest and discussions regarding whether the BBC was right to suspend Mr Lineker for his comments, the application of the BBC’s impartiality rules, and the importance for employers to have a clear social media policy.
Can Employees be Disciplined for Use of Social Media?
Whilst it is not clear whether Mr Lineker was an employee of the BBC or a self-employed contractor (which would have an impact on Mr Lineker’s employment rights), generally speaking, where an employee or worker has been involved in misconduct, an employer can instigate disciplinary action, which can include suspension. Case law has confirmed that “misconduct” covers behaviour which takes place both inside and outside of the workplace. With continued developments in technology, social media and internet misuse have become the most common example of misconduct out-with the workplace.
Section 98 of the Employment Rights Act 1996 also provides potential grounds for employers to dismiss an employee for misconduct and in some more serious cases, social media and internet misuse may be considered gross misconduct which can give an employer grounds to summarily dismiss an employee, without notice.
Where misconduct takes place out-with the workplace, the key issue for employers to consider is:
- Whether the conduct in question relates to the employment relationship;
- Whether this affects the employee’s ability to do their job.
Where misconduct relates to internet or social media misuse, regard will be had as to:
- Whether the employee’s use of social media is work-related. This can be dependent on the facts and circumstances of the case;
- The damage / potential damage to the employer’s reputation as a result of the misconduct;
- The information given to the employees about the employer’s expectation regarding use of social media.
Before taking any disciplinary action or making a decision to dismiss an employee due to misconduct however, it is always beneficial to seek legal advice so to prevent liability for any Employment Tribunal claim which may arise.
Importance of Social Media Policy
In Crisp v Apple Retail, the Tribunal found that Apple’s decision to dismiss an employee for ranting about his employer on a private Facebook group was fair. The Tribunal’s decision focussed on the fact that Apple had made clear in their policies and training materials that protecting its image was a “core value” and had drawn attention to the fact that making derogatory comments on social media would likely constitute gross misconduct. This case highlighted the importance of having a clear social media in place and communicating this to employees.
In Mr Lineker’s case, the BBC’s Editorial Guidelines set out that impartiality is fundamental to the “reputation, values and trust of audiences” and employees must use social media with “appropriate regard for the BBC’s values”. The BBC’s Social Media Guidance also states “The extent to which a non-staff member, contributor or presenter is required to comply with the editorial guidelines will be set out in the BBC’s contractual relationship with them”.
The extent to which the BBC’s Guidelines and Guidance apply to Mr Lineker as a freelance Broadcaster is unclear, and it has been accepted that the BBC’s Social Media Guidance does not go far enough to clearly set out what the obligations are. As such, the BBC has confirmed that their Guidance will now be subject to independent review.
The situation with Mr Lineker and the BBC is a timely reminder to employers to review their social media policy and make adjustments where necessary to ensure it is suitable for today’s digital environment. Having a clear social media policy in place, clearly defining what is and what is not acceptable is not only an important consideration for the Employment Tribunal where a claim is raised, but is also fundamental in ensuring employees are aware of the standards expected of them and risks that non-compliance may have on their employment.
Policies should be carefully balanced between employee’s rights to express personal opinions, and the employer’s expectation that the company is not brought into disrepute. It is also important to remember that some opinions may be protected under the Equality Act 2010, such as religious or philosophical belief, therefore employers must be careful that they do not discriminate against an employee, or victimise others who support the employee with their belief, as doing so could lead to an Employment Tribunal claim.