Roman MacKenzie: Lineker vs BBC — a case for unfair dismissal in the making?
Roman MacKenzie explores the Gary Lineker and BBC saga through an employment law lens.
Welcome back to another classic matchup. The build-up has been immense and the fan interest has never been higher, taking the nation by storm: the BBC’s social media policy vs Gary Lineker’s personal views.
Tweeting in relation to the UK Government’s immigration policy, it soon kicked off between Lineker and his employer, with the former being “subbed off” from presenting duties until an agreement could be made between the parties regarding social media use. A (Mexican) wave of support likely assisted in negotiations between the two and Lineker has now been reinstated with a review of the BBC’s employee social media policy sure to follow.
Though a willingness was shown from both sides to rectify the situation here, this may not always be possible. The employer showed Lineker the yellow card and issued a suspension, but what if they went further into the pocket and out came the red?
Assuming that Lineker satisfied the requirements to be regarded as an employee, how does the BBC, or indeed any employer, go about preventing a successful claim for unfair dismissal as it relates to social media posts made outside of the workplace?
Pre-match analysis: A fair reason for dismissal?
As with all dismissals, the employer must show that the dismissal was one of the five potentially fair reasons for dismissal as contained within s98 of the Employment Rights Act 1996. In cases such as these, employers have treated social media posts as a misconduct issue. Furthermore, case law has long shown that misconduct does not necessarily need to take place within the workplace to support a dismissal; particularly when it may damage the employer’s reputation. Case law has evolved to encompass social media use within this definition of misconduct.
A clear example of this is Gibbins v British Council, which saw a senior British Council employee post an explicit Facebook comment regarding Prince George. Though the tribunal recognised that the employee’s republican views in themselves were not the issue, it concluded that the claimant should have been aware that such obscene comments could have offended others. In light of this, any association with the employer would have caused damage to the employer’s reputation. Additionally, the tribunal took note of the fact that the claimant was aware of the employer’s social media policy and knowingly breached it which was considered to be reckless on her part.
In Mazur v Crediton Dairy Ltd, however, an employee posted a photograph to his Facebook account in which he donned a plastic Osama Bin Laden mask whilst also partially displaying his employer’s logo. Following a dismissal for gross misconduct, the tribunal later held that this was unfair as, among other things, the employer had no evidence to prove that they had suffered reputational damage. Accordingly, there must be reasonable grounds on which the employer believes there to be a damage to their reputation in their decision to dismiss.
It is also worth noting that the employee’s behaviour in the aftermath of any alleged social media misconduct will be assessed by the tribunal. In Trasler v B&Q, an employee was dismissed for derogatory comments about his workplace and, despite a successfully claiming unfair dismissal, compensation was reduced due to a lack of remorse shown by the claimant.
Social Media Policy
Applying the above decisions, it is clear that breaching a clear social media policy from the employer is a factor in favour of a fair dismissal. Accordingly, Lineker’s tweet leaves little room for dispute on this and arguably looks to reflect the “reckless” action seen in Gibbins.
BBC 1-0 Lineker
Unlike Gibbins v British Council, however, Lineker’s tweet did not use explicit language to form a political opinion. There was no real risk of interpreting it as an act to cause offence. Nevertheless, Lineker showed little remorse for violating his employer’s the social media policy – a position which case law has shown may reduce the award in a matter of unfair dismissal. Though he draws level through the innocuity of his words, Lineker soon concedes due to a lack of remorse.
BBC 2-1 Lineker
We’re nearly at 90 minutes and it’s not looking great for Lineker. But don’t blow the final whistle just yet, the key factor the tribunals have considered is whether the employer can prove that the employee’s social media post has caused, or is likely to cause, reputational damage.
Considering the facts here, there was no offensive language used in the tweet and, following his suspension, Lineker was met with a lot of support from other colleagues. In fact, a large portion of social media users following the issue expressed support for his views. Accordingly, it seems highly unlikely that the employer could reasonably suggest they believed that they had suffered reputational damage here. The goal would seem particularly wide for Lineker with this one.
Final Score: BBC 2-2 Lineker
This is by no means an exhaustive list of the elements that a tribunal will consider when looking at social media and misconduct. Accordingly, if you find yourself in a position where you believe an employee should be dismissed on account of their behaviour on social media, it is always beneficial to seek legal advice before doing so. As for the BBC and Lineker, they’ll presumably be happy to settle for a draw and avoid any extra time on this one.
Roman MacKenzie is a trainee solicitor at Blackadders LLP