If you live in the UK, you will no doubt be familiar with the controversy surrounding the BBC’s recent decision to take presenter Gary Lineker off Match of the Day for a short period before allowing him to present again.
Lineker had published a tweet in which he criticised the government’s new asylum policy, stating that it was an ‘immeasurably cruel policy directed at the most vulnerable people in language that is not dissimilar to that used by Germany in the 30s’.
Subsequently, on Friday 10 March 2023, it was revealed that he had been told by the BBC to ‘step back’ from presenting Match of the Day, on the grounds that his tweet was in breach of their guidelines.
Following this news, the BBC faced public backlash and a number of other presenters announced that they would not be presenting their shows whilst Lineker remained suspended. On 13 March 2023, perhaps as a result of the pressure from the public and the other presenters, it was announced that Lineker would be allowed to return to his presenting role.
Lineker’s position within the BBC clearly differs from the usual employee and employer relationship. Firstly, Lineker is a freelancer so is not an employee of the BBC. The BBC also has unique duties to be impartial as an organisation, reflecting different views whilst not having an opinion itself. As a result, journalists at the BBC who report the news are required to be impartial at all times, although the BBC has stated that as Lineker is not a news reporter these requirements do not apply to him in the same way.
It also assisted Lineker that he is a widely respected sports presenter, and the BBC faced backlash internally and publicly for suspending him.
However, aside from the unique aspects of this story, workplace disputes regarding the use of social media by workers is prevalent across all sectors. In particular, many workers find themselves subject to disciplinary procedures at work for expressing political views online. This is becoming a growing hazard in the politically charged times we are living in.
So where is the line drawn between a worker having a right to express their political opinions, and the employer’s entitlement to discipline them for making statements that may harm their business?
Disciplinary action and dismissal
The case law makes clear that it can be reasonable for an employee to be disciplined or even dismissed for social media posts that they make in their own time and on their own private accounts. This might be surprising to some employees who assume that it is not the company’s concern what they do outside of work on social media, and they have a right to privacy when posting on private accounts. In the case of Crisp v Apple Retail (UK), a tribunal held that it was fair to dismiss an employee for posting comments on their private Facebook account that brought the employer into disrepute. The employee argued that his right to privacy had been infringed, but the tribunal concluded that he did not have a reasonable expectation of privacy given that he had no control of how his posts might be copied and republished.
The issue of employees publishing political views on social media causes further complication, given it involves the issue of freedom of expression. In Keable v London Borough of Hammersmith and Fulham, the employee had attended a political rally in his own time, and at that rally had expressed some controversial views regarding Zionism. A video recorded of him was widely shared on social media and he was identified as an employee of London Borough of Hammersmith and Fulham. The employee was dismissed on the basis that the comments were likely to be considered offensive and could bring the employer into disrepute. The tribunal held that the dismissal was unfair because the employee had expressed his political views in a lawful way outside the workplace, even if those views may cause offence. The tribunal stated that employees are generally entitled to promote political beliefs, providing they do so lawfully. In this particular case, the employee did not purposefully try to publish his views, which limited his culpability.
Some philosophical beliefs can qualify as a protected belief for the purposes of section 10 of the Equality Act 2010, in which case it would likely be unlawfully discriminatory to discipline or dismiss an employee for holding that belief. The legal test for determining whether a philosophical belief is protected under the Equality Act 2010 was set out in the case of Grainger plc and others v Nicholson:
- The belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion, and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Political opinions on news stories are unlikely to qualify for protection under the Grainger test, as they will usually just amount to an opinion or viewpoint as opposed to a belief regarding a weighty and substantial aspect of human life. However, some political philosophies that go beyond a singular view on a specific story may qualify as a protected belief.
Particularly controversial political opinions might be disqualified from protection under the Equality Act, if they are incompatible with human dignity and conflict with the fundamental rights of others, contravening point five listed above.
Determining whether or not a belief meets the Grainger test set out above is often a difficult exercise, and discrimination cases concerning philosophical beliefs involve detailed analysis of the belief in question by tribunals and appellate courts.
Where an employer is concerned that an employee has published political statements that may harm their reputation or their business, they should approach the matter sensitively and take into account the employee’s right to express their political views. It is always advisable for an employer to have a comprehensive and fair policy setting out the circumstances in which social media activity by an employee amounts to misconduct.
In these scenarios, employers should also always keep in mind the criteria of the Grainger test set out above, to consider the risk that they may unwittingly discriminate against the employee based on their belief by disciplining them or dismissing them.