Lineker, the BBC and do you have a social media policy?

In the wake of a weekend where Gary Lineker has gone from a household football name to a person subject to widespread controversy surrounding freedom of speech and the imposition of workplace policies, the situation has raised questions as to appropriateness of social media use and whether an employer can restrict an employee’s use of social media.  Although it has now been confirmed that Lineker will be returning to air on the BBC, the question stands: what can employers and employees alike take home from this situation?

It seems there are two sides to the debate. On one hand, Lineker operated within the Sports and Entertainment sector of the BBC – a distinct area, separate from the Political sector. On the flip side in 2020, Tim Davie, director general of the BBC, declared “impartiality” as a founding principle of the BBC itself. The debate demonstrates the difficulty that employers have when condoning comments that could potentially damage an employer’s reputation – where does the line get drawn between balancing freedom of speech with impartiality.

The appropriateness of policy restrictions

With the increase in social media use in and outside the workplace, all employers should consider implementing a clear social media policy. However, whilst there is a general consensus that use of social media by employees should not discriminate, cause offence, or disrepute the employer, the question as to more specific social media policies turns to the question: ‘is the policy necessary’?

When implementing any social media policies, it is paramount for employers to keep the key values of the company at the forefront when deciding whether a policy is necessary. The BBC have decided that one of their core values is impartiality and Lineker is representing the BBC. The reputational damage that making comments on social media can cause is a risk that the BBC have to mitigate, and so have done through their social media policy.

Therefore, whilst it is possible for employers to adopt more restrictive social media policies, these should only be implemented when there is a specific need – for example, where it is important to an employer’s values to remain politically neutral. As mentioned above, the key question for all policies is whether they are necessary for the specific employer and their company values.

Implementation of social media policies

As to whether policies could be enforceable, ultimately employers should aim for policies, so far as possible, to be non-contractual and contained within an employee handbook. Containing policies outside the employment contract itself allows employers to revise the policy should the need arise, without express agreement from employees.

Employees should however, bear in mind that detailing policies in an employee handbook does not mean that the policies are legally unenforceable. Employees will usually be under an express or implied contractual duty to comply with policies which provide employees with important instructions.

Case law on social media use by employees has demonstrated that employers may have grounds to discipline employees where:

• There is a clear and widely communicated policy on social media
• There is a link to the employer
• The posting or material is about the company/staff personally
• The material was inappropriate/offensive
• Other employees were disciplined in similar circumstances

Take-home points

It is essential that if employers want a clear enforceable social media policy in place, they should ensure that the policy is clearly communicated to the employees. To ensure that all employees are kept up to date with the policy, circulating the handbook at least once a year (and more frequently if the policies have been revised) should be considered. Employers may also wish to consider requiring employees to confirm safe receipt of the email, or sending the handbook via a HR portal, so to prevent a situation where an employee may claim they were not aware of the policy in place.

Once a policy is implemented, employers should also ensure that internal policies and procedures are up to date in the event that they need to proceed with sanctioning procedures.

If you have any questions regarding implementing social media policy, whether a social media policy applies to you, or the appropriateness of restrictions, please do get in touch by emailing employment@herrington-carmichael.com.