Disciplining Gary Lineker – was the employer right?

On March 9, the BBC suspended a top sports presenter, Gary Lineker, because of a tweet criticising government policy.

In a row about BBC political impartiality, director general, Tim Davie, removed Gary Lineker from presenting Match of the Day. He had to reverse that decision.

So, was the BBC ever entitled to take serious disciplinary action against a worker because of a private tweet?

Grounds for disciplinary action

Employers can discipline staff due to his or her breach of obligations regarding their employment contract, statute or reputation.

The statutory obligation operated when care homes sacked unvaccinated health workers due to government regulations. Yet, no such statutory imperative fits Gary Lineker’s situation.

Media reports suggests that there was no clause in Lineker’s contract that prevented him from airing political views through using social media. He argues he was freelance and not staff. Leave aside HMRC’s current claim that he is staff and not a contractor, what else was there?

Criminal conduct

Employers typically have staff policies around reputation and conduct. Employment tribunals make judgements about staff dismissed staff due to criminal charges or convictions unconnected to their employment.

Typical offences include sexual conduct, violence or dishonesty. An employment tribunal will take into account the employee’s length of service, status, relations with colleagues, the impact on the business of the employee’s charge or conviction.

In Gunn v British Waterboard 1981 case, the Employment Appeal Tribunal heard that an employee was sacked after breaking into a surgery to steal drugs. The tribunal rejected his plea that his behaviour did not affect his job and upheld the dismissal based on his colleague’s reaction to him and his employee’s reputation.

Nothing there was relevant in Gary Lineker’s case.

Reputation and guidelines

Reputation is a factor in staff policies regarding their conduct as employees and the BBC has to worry about being seen as impartial in its news and current affair coverage.

The BBC Royal Charter, renewed and laid before Parliament in 2016, states: ‘…the BBC should provide duly accurate and impartial news, current affairs and factual programming to build people’s understanding of all parts of the United Kingdom and of the wider world.’

This is supported in the BBC’s Editorial Guidelines to staff. Section 4.1 states: ‘…The external activities and public comments, for example on social media, of staff, presenters and others who contribute to our output can also affect perceptions of the BBC’s impartiality…’

Editorial guidelines concern BBC output. There are also social media guidelines that state: ‘…when someone is clearly identified with the BBC and/or discusses their work, they are expected to behave appropriately and in ways that are consistent with the BBC’s editorial values and policies…’

While after referencing news, guidelines say BBC employees should not: ‘…express a view for or against any policy which is a matter of current party political debate…’

This is why the Mail on Sunday in its comment piece on 11 March 2023 argued that Lineker  ‘outrageously breached the BBC’s sacred impartiality’. MPs and members of the government, who oversee the BBC Charter, demanded action from the employer.

Guidelines are not contractual

But, hang on a minute. There is confusion. Were guidelines part of Mr. Lineker’s contract? There would have to be a reference to those guidelines in the main terms of his contract to provide grounds for an employer to discipline him.

There is also confusion as to whether the guidelines concern BBC staff and freelancers, let alone whether they are about news production. Gary worked in sports for BBC through his company Gary Lineker Media.

Of course, Gary Lineker was not using BBC output to promote his views. He used his own Twitter account. Plus, BBC’s Editorial Guidelines promote freedom of expression.

Clauses in contracts, employment and otherwise, need to be clear and unambiguous to be enforced by an employment tribunal or other court. Contracts also have clauses that are more enforceable, or important, than others. A contract with clauses that a reasonable person would uphold are the basis for disciplinary action.

In terms of guidelines, in general and about social media, employers should provide their employees with a staff handbook or other similar documents. Enforcing those same guidelines are complicated.

Photo credit: TheAsianAwards