We are told that Gary Lineker leaving the BBC was a ‘mutual’ decision and there was no dismissal.  

Let’s imagine that there was no ‘mutual’ decision and that Linekar was dismissed. Would the BBC have been confident in their defence against an unfair dismissal case?  

It’s not the first and probably will not be the last high-profile dismissal following social media posts, so it’s good to dwell on these questions.

• Guiding principles when dealing with employees’ social media posts 

Avoid knee-jerk reactions – in the face of a complaint from a colleague or a third party like a tenant or person you support, etc., it is tempting to respond quickly. You want to ensure that the complaining party feels that you have taken their complaint seriously. That’s a good motivation, but the reaction must be thoughtful, mindful of the circumstances and set by your pace, not outside pressures. You must not forget the obligations that you owe to your employee as their employer to treat them fairly and not discriminate against them. Knee-jerk reactions can often lead to hasty decisions, which are hard to justify later. 

Take action promptly – being slow to deal with a complaint about an offensive social media post is similarly an unwise approach. It can cause as much damage as an overreaction. Set reasonable time frames for investigating the complaint and don’t delay in discussing the matter with the employee concerned. Do not be tempted to delay because you are mindful it’s going to be a tricky issue.  Tricky issues tend to get trickier the longer they are left! 

Start a conversation – make sure that you are talking to the employee who posted the material.  Do not make assumptions about their opinions, beliefs or motivations. To do this might in itself be unfair or even discriminatory. Seek to understand their motivation and understanding of the impact of the post. Did they understand the offence it caused? Do they hold a particular belief (philosophical or religious) that the post expresses or relates to? Is it their content that they have created, or have they re-posted the content of someone else? Are they willing to take it down and maybe apologise, or is it something they feel strongly about and don’t want to back down? 

Context and circumstances – The specific circumstances are going to be very important in these kinds of cases. Gary Lineker’s recent post was not the first time he and the BBC had disagreed over his social media presence. Gary Lineker is one of the long-standing and well-known faces of the BBC. The BBC is a unique organisation with important impartiality guidelines. If an employee has posted something for the first time and is genuinely unaware of the impact, and they apologise, that is very different from an employee who continues to post offensive material, despite conversations and warnings. Similarly, an employee who is relatively junior in your organisation who only has a handful of followers on social media isn’t going to be in the same league as Gary Lineker in terms of the potential damage to your organisation’s reputation. 

Make sure any response (whether that is dismissal or some other measure) is proportionate* - we all have a right to freedom of expression, and we all have the right to hold a belief and manifest that belief. An employer who dismisses or disciplines an employee for expressing their beliefs on social media could potentially be limiting those rights, and this could lead to a successful belief discrimination claim.  An employer may be able to defend such a claim IF they can show that the employee’s manifestation of their belief was objectionable and the employer’s response was proportionate in the specific circumstances of the case. 

Policies – if you have not done so already, consider giving staff clear boundaries and expectations regarding their social media activity. The BBC has their Impartiality Guidelines. What do you have? I’d recommend, as a minimum, having it set out in writing that staff should not behave on social media in a way they wouldn’t in the workplace. You should make it clear that personal social media profiles should have no affiliation to the organisation and warn staff that their activities outside of work on social media, depending on the circumstances, could be treated as misconduct to be dealt with under the Disciplinary Policy. 

*The current case which addresses this issue is the Court of Appeal case of Higgs v Farmor School.  A pastoral assistant was dismissed by the school where she worked following gender critical posts that she made on Facebook.  

Please read our blog on this case as it extends out some of our guiding principles above, providing more practical advice. 

Employers are having to tread very carefully in these types of cases, particularly where beliefs are involved. Each situation will need to be considered on its own facts. If you would like any specific advice on the issues raised in this blog, please do contact me.