The Lineker case: how (not) to deal with a twitter storm

No iconic theme tune, no commentators, no pundits in the studio and most importantly no Gary Lineker. There is little doubt that the Match of the Day (MOTD) which aired on 11 March 2023 was unique. The controversy of last weekend had at its centre tweets sent out by Mr Lineker on 7-8 March that were critical both of the Government’s recently introduced Illegal Immigration Bill,  and the language used by its proponents.

While the unique and sticky issue of BBC impartiality was also at the centre of this row, an organisation seeking to protect its reputation from perceived damage caused by the social media activities of their employees or, as in Mr Lineker’s case, a self-employed contractor closely associated with their brand, is anything but unique.

In recent years, there have been a raft of cases exploring whether and how far an employer can discipline an employee, worker or contractor for expressing their views or beliefs on social media. This is a symptom of increasingly polarised political and other beliefs, most strikingly expressed in online discourse.

The beliefs which have been at the centre of some of these recent cases include: republicanism (Gibbins v British Council: 2200088/2017), beliefs against homosexual couples adopting (Page v NHS Trust Development Authority [2021] EWCA Civ 255), and gender critical beliefs (Forstater v CGD Europe and Others: UKEAT/0105/20/JOJ and Bailey v Stonewall, Garden Court Chambers and others).

Interestingly, the key questions raised by the BBC’s decision to ask Mr Lineker to step back from his usual on air duty, fall into three areas that are likely of universal importance when organisations face a social media dispute:

1. Was the application and implications of the social media policy/guidelines clear enough?
2. Was the policy applied consistently?
3. Was the sanction applied reasonable?

Application of the Guidelines

The BBC’s initial statement of 10 March appeared to contain a contradiction, indicating both that Mr Lineker had breached its guidelines, but also that a position still needed to be agreed on his ongoing use of social media. The BBC has since announced a review of its social media guidance to avoid the “potential confusion caused by the grey areas of the BBC’s social media guidance”. The BBC appears to accept that the guidelines it had in place were not sufficiently clear, both in terms of who they applied to and how they were applied.

Consistency

Turning to consistency, lots of commentary online in the wake of Friday’s decision brought up examples of other BBC employees or contributors who have aired political opinions, whether online or on other platforms, without similar censure.

Parallels can be drawn here with the Bailey case, where a barrister, activist and prolific tweeter (who held gender critical beliefs which she expressed online) was able to point to how her Chambers reacted less favourably to complaints received about her tweets, when compared with its response to complaints received that a colleague’s tweet had been anti-semitic.

Inconsistent treatment carries legal and reputational risk in most areas of employment law. This is all the more important where organisations are seeking to interfere with freedom of expression.

Sanction

Was the BBC’s public comment on 10 March a sanction? Looking at Bailey,a public rebuke of any kind could well be considered one. When imposing sanctions (via a public statement or through a disciplinary process) for breach of social media policies, employers must be aware that their sanction could be considered a breach of the Equality Act (if as in Bailey and Forstater the impugned expression is considered an expression of the individual’s belief). Public sector employers must (and private sector employees should) also consider the impact on the individual’s Article 10 European convention right to freedom of expression.

More recent judgments in this area suggest that the fact that a post/public comment has caused a twitter storm, may be insufficient to justify such an intrusion on an employee’s right to freely express their beliefs. In Page, for instance, it was vital that the Trust’s reason for ending its engagement with Mr Page was not for “some generalised perceived reputational damage to the Trust” caused by Mr Page’s public comments, but based specifically on the risk that his comments (given his senior position at the Trust) “might deter mentally ill gay people in the Trust’s catchment area from engaging with its services”.

It appears that reputational damage as a justification for interference should not be considered in the abstract; it needs to be focused on the reputation of the particular organisation. There should be a detailed and careful consideration of the nature of the posts, the wording of applicable policies and any further context (like a protected belief) before an organisation applies any sanction, whether via public comment or otherwise.

The Birketts view

While the Gary Lineker case has its unique elements, there are clear parallels to be drawn with the challenges faced by any organisation whose employee or contractor is a vocal social media presence. Organisations should consider the wording of their social media policy carefully and try to give as much clarity to their employees and contractors as possible. Consultation with staff and providing worked examples may be required to ensure expectations are set. Organisations should also be mindful that the more control they seek to exert on a contractor, the more risk that they may be considered a worker or employee.

The policy should acknowledge that beliefs of all types, including those which may be seen as less desirable, may now be afforded protection by the Equality Act 2010, and the policy will need to balance rights accordingly. Finally, when relying on the policy to impose sanctions, consistency of treatment and a careful and considered response will be vital. This is an area where knee jerk reactions should be avoided!