21st March 2023
In the wake of the Lineker saga, our Sports Employment lawyers Charlotte Smith and Adam Melling consider the legal implications surrounding use of social media by employees, workers and consultants, before turning to practical advice for businesses when faced with unwanted social media publicity.
For a brief moment, it felt like a significant moment in social history had occurred. Gary Lineker’s name is synonymous with Match of the Day. The thought of the camera no longer panning to the former England international to kickstart the show left many disappointed (and others, not so much).
Regardless of your views on Gary Lineker and ‘the Tweet’, it left us pondering the counterfactuals. What if the BBC hadn’t backed down? What if it had terminated Lineker’s contract? What if it had allowed him to continue, but with a blanket ban on expressing socio-political views on social media?
Taking the narrative away from Lineker, it’s certain that social media will continue to provide a forum for employees, workers and consultants to express their political views and other opinions, some of which may be objectionable to their employer or the business they are providing work or services to.
Engaged in a debate on Twitter, Lineker tweeted: “There is no huge influx. We take far fewer refugees than other major European countries. This is just an immeasurably cruel policy directed at the most vulnerable people in language that is not dissimilar to that used by Germany in the 30s, and I’m out of order?”
Broadly speaking, the Equality Act 2010 protects individuals from discrimination and harassment on the grounds of religion or a philosophical belief. Cases on the latter are becoming increasingly prevalent – you may recall a Rangers fan recently sought to claim that his support for The Gers was a protected philosophical belief (unsuccessfully, by the way).
Identifying a philosophical belief requires an examination of the Grainger  criteria – a series of judge-made factors which are keenly debated, some of which present significant hurdles for most strongly held views:
The criteria seek to make sure that only philosophical beliefs which are of similar status or cogency to a religious belief are protected.
Whether a belief’s capable of protection may turn on the way it’s framed. Here, Lineker’s belief would likely be along the lines that asylum seekers must be entitled to enter a safe country to seek protection from persecution and human rights violations, and that the UK mustn’t act to undermine that right. It’s certainly arguable that the former footballer’s belief is capable of protection under the Equality Act, bolstered by the fact that he’s hosted a number of refugees in his home (which therefore goes towards the genuineness of his belief).
If Lineker had got over that hurdle, the refusal of the BBC to continue to engage him due to the expression of his belief may have fallen foul of the Equality Act. But whether or not the manifestation of a belief is properly separable from the belief itself is the subject of strongly contested cases such as Mackereth v DWP . In other words, a court would have to consider whether the manifestation of Lineker’s opinion – the drawing of language parallels between the UK government and Nazi Germany and breaching the BBC’s social media guidelines – was in fact properly separable from the belief itself (and, if so, he wouldn’t be entitled to rely on the protection in the Equality Act).
There’s been much debate about political opinions and their place in the legal framework. Both parties to the Lineker saga view Lineker as a consultant as opposed to an employee, such that the protection afforded to employees is of limited relevance to those specific facts. But its application is of much wider relevance to employers when considering the thorny issue of how to approach employees’ use of social media.
Following a judgment of the European Court of Human Rights, the government introduced protection from dismissal where the principal reason is or relates to an employee’s political opinions or affiliation. This applies to all employees, regardless of their length of service. However, it’s been explicitly held that this protection doesn’t cover dismissals where the individual showed unwillingness to remain politically neutral. Nor does it cover circumstances where it’s not the opinion, as such, which results in the dismissal (although, as mentioned above, it may be difficult to distinguish the manifestation of an opinion from the opinion itself).
Once an employee has two years’ service, ordinary unfair dismissal principles would apply. In determining whether the employer’s decision to dismiss is within the range of reasonable responses, the tribunal must give due regard to the protection of freedom of expression and of assembly and association under the European Convention on Human Rights. Countervailing factors would include whether the employer has a clear social media policy prohibiting such conduct and the upset/harm caused to other employees and/or client relations/business interests and reputation as a result of employees’ use of social media. Of course, human rights are weighty factors in the assessment of reasonableness.
Now more than ever, employees, workers and consultants are able to engage in contentious and sensitive topics in a public setting, and have the impetus to do so. We have extensive experience navigating investigations into inappropriate use of social media and clashes of fundamental rights. We’re on hand to make sure that an employer’s business risks and concerns are properly weighed against the delicate employment and discrimination considerations that such issues give rise to. Please contact Charlotte or Adam for advice or assistance concerning use of social media or related issues.
 Grainger plc and others v Nicholson  IRLR 4
 Dr David Mackereth v The Department for Work and Pensions  EAT 99