TWITTER – should Lineker get a BBC red card?

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Employment Law: did the BBC’s social media policy restrict Lineker from freedom of speech?

It’s been hard to avoid the furore over the weekend about the fallout from Gary Lineker’s tweets.  I won’t go over the content here – I’m an employment lawyer, so will stick to the employment issues.

We’re told the BBC has a social media policy – good – all employers should have one.

A social media policy should apply to all use of social media, whether business or personal.  It will set out things like any restrictions on who can post about the employer’s activities or be seen to speak on the employer’s behalf, as well as how to avoid being seen to speak for them. For instance, it should make clear where a statement on social media about the employer’s activities will lead to disciplinary action.

A good social media policy will cross refer to the employer’s other policies including confidentiality, whistleblowing, harassment & bullying, communications, data protection, ESG, and EDI policies, and make clear that if a post breaches any of those policies, you may be subject to disciplinary action. It’s a good idea to provide training on use of social media, especially for staff who will be posting on behalf of the employer. You may want to require all staff to include a caveat in their bio to make clear that any views expressed are personal and not given on behalf of the organisation.

In the Lineker case, it seems that the issue for the BBC was Lineker’s high profile meant that alongside journalists and those BBC staff involved in factual programming, he was expected to “avoid taking sides on party political issues or political controversies and to take care when addressing public policy matters,” under the BBC’s guidelines for individual use of social media.

Again, I’m not going to dig into whether Lineker’s comments were in fact a breach of the policy. There’s also been a lot of noise around whether the BBC was bowing to outside influences, or construing its own policy in line with Government wishes.  From an employment law perspective, the point is more about whether the policy was reasonable, whether it should apply to the individual in question, and whether it’s reasonable to suspend or discipline them for alleged breach of the policy.

Employees benefit from and are subject to greater rights and obligations than independent contractors. That’s important in the Lineker case – if a BBC employee, especially one working in journalism or factual programming, had made the same comments, I’m not sure anyone would suggest they shouldn’t be disciplined, because they clearly fall into the BBC’s restrictions on personal use of social media.

However, an independent contractor, as Lineker is, with interests and substantial involvement elsewhere, wouldn’t on the face of it fall into the same category: if he’s not entirely a “BBC man”, why should he be expected to curtail any personal comments?  This isn’t the first time he’s expressed personal views on social media, so why was a sanction imposed this time?

Employers should make sure to impose the same sanction for the same misconduct, or they’ll open themselves up to accusations of being unfairly influenced by outsiders – the employment equivalent of the attacking team surrounding the ref to assertively persuade them to award a penalty for a 50/50 challenge.

Undoubtedly, social media policies are an essential tool for employers these days.  If you don’t tell employees/contractors what they can or can’t do or say, it’s much harder to discipline someone if they say something inappropriate.

Many years ago, I dealt with an unfair dismissal claim where my client’s employee had been dismissed for posting a derogatory blog on MySpace (remember that?!). Although my client was hampered by the statutory disciplinary and dismissal procedures (remember them?!), the Employment Tribunal accepted that it was reasonable to have dismissed the employee for their actions – if you like, it was a technical loss that only happened because the offside rule was temporarily removed.

So in terms of actions to take, get a lawyer (me for instance) to review your social media policy, or if you don’t have one, get a lawyer to draft one for you.  Train any employees who will be posting in the organisation’s name or on its behalf. Be consistent in your responses to breaches of the policy, or where you aren’t comfortable with a post.  If you want to ask an employee, or former employee, to delete a post, check your policy allows for this and get advice – or better still, ensure your policy provides upfront for this scenario.

I’ll just close with an apology for all the football analogies.  I think they’re over.

Well, they are now.

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