Following the BBC temporarily removing Gary Lineker from his role as presenter of Match of the Day, we consider whether it is possible for an employer to dismiss an employee fairly for expressing their personal political opinions on a social media platform.
Last Tuesday, Gary Lineker compared the government’s asylum policy to language used in 1930s Germany in a Twitter post. As an influential sports and media figure, Gary Lineker has a public Twitter profile and, at the time of posting, 8.7 million followers. The BBC took the decision to require Gary Lineker to step back from presenting Match of the Day until a position on his use of social media had been agreed. Whilst this is an extreme example of the serious repercussions that can arise from such action, this is a situation which causes concern for many employers. A question often asked by employers under these circumstances is whether they can dismiss the employee concerned.
As with many acts of potential misconduct, the starting point for an employer is to consider any documentation it has in place which sets out the rules employees must follow. In the case of potential misconduct arising out of an employee’s social media posts, the key document will be an employer’s social media policy. A social media policy applies to an employee’s business and personal use of social media and sets out restrictions on what employees can do. It may require them to avoid naming their employer on their social media profiles and limit the extent to which they can make comments about or on behalf of their employer. It should make clear that any breach of the policy will lead to disciplinary action. It will also refer to other employer policies such as confidentiality, data protection, bullying and harassment and equity, diversity and inclusion policies.
If an employee has acted in breach of an employer’s social media policy, it may be reasonable to take disciplinary action against that employee, which could potentially include dismissing them. However, whether disciplinary action will be reasonable will depend on several factors such as:
- Whether the employee has a public social media account and, if not, whether the employee’s colleagues or the employer’s customers were able to see the social media post concerned.
- Whether the employer is identifiable from the social media account, either because it is expressly mentioned or because it is otherwise identifiable.
- The actual or potential reputational damage that the employer could suffer from the social media post (particularly if the employee’s post could be construed as reflecting the views of the employer).
- The nature of the post, such as whether it is discriminatory or harassing towards the employee’s colleagues or makes derogatory comments about the workplace.
Another factor for employers to consider, which has been discussed in the media in relation to Gary Lineker, is whether the employer is treating the employee concerned consistently with other employees in taking disciplinary action. If other employees have made similar comments on social media and have not been disciplined or have received a lesser sanction, the employer will need to show why it is treating the employee in the current situation differently. Any disparity in treatment without good reason could lead to any dismissal (or other sanction) being unfair.
The situation in relation to Gary Lineker differs from the above as he is an independent contractor for the BBC. However, it is possible for employers to assert that their social media policy applies to all staff (including contractors). It is important for organisations who wish to do this to ensure that there is a written contract in place with the contractor which references the employer’s social media policy (providing the contractor with a copy) and states the repercussions of the contractor not complying with it (such as the termination of the engagement).
If you require any further information in relation to the above or require a social media policy, please contact a member of the Employment and HR Team.
Disclaimer: this post has been produced for Napthens’ website blog and does not constitute legal advice.