Lessons from Lineker: Social media and expression of beliefs

The Tweet: A philosophical belief?

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 [1] criteria – a series of judge-made factors which are keenly debated, some of which present significant hurdles for most strongly held views:

• The belief must be genuinely held.

• The belief must be more than an opinion or viewpoint based on the present state of information available.

• The belief must be as to a weighty and substantial aspect of human life and behaviour.

• The belief must attain a certain level of cogency, seriousness, cohesion and importance.

• The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others – this is where an extreme, abhorrent belief, such as a belief in the persecution of a particular group of people, may fall down.

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 [2]. 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).

Employees’ use of social media: Other protections

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.

Key takeaways

Issues which engage human rights create high hurdles for employers to jump over

• Expressing beliefs on social media is unlikely to merit action unless it very clearly goes beyond the bounds of what’s acceptable. Freedom of expression isn’t an absolute right, but if it doesn’t impinge on an employee’s work or the employer’s business, it won’t generally constitute misconduct warranting action/dismissal.

Temper the knee-jerk reaction.

• If you find something an employee has posted online objectionable, your initial reaction may well be that you need to take action. But you shouldn’t act in haste. Consider whether you need to respond and, if so, how.

• Employers often (perhaps forgivably) fear the worst when they may be associated with a controversial tweet – that it’s ‘bad for business’. Dismissing or sanctioning an individual who expressed a protected belief in order to appease upset employees or customers (or, in the case of, for example, football clubs, factions of society in general!) will likely constitute direct discrimination if the objections amount to finding the individual’s views offensive.

• Where employees have expressed objections, would workplace mediation be appropriate? It may prove to be a positive discussion.

A social media policy can be useful, but must be drafted carefully.

• Employers can’t use a policy to target beliefs they don’t like and it would be too difficult (and undesirable) to seek to prohibit discussion of all beliefs. Whether this is being properly balanced by the BBC in its current social media use guidelines may well play a part in the independent review, commissioned as part of the response to the Lineker saga.

• When it comes to managing use of social media by employees, workers and consultants, all employers can do some simple things with a social media policy without wading into those murky waters. For example:
  • Depending on the social media platform, you may require employees not to associate themselves with the business on social media. If the individual is widely known to work for your company, you could instead require them to state, in a prominent location on their page, that it’s a personal account and posts are not made on behalf of or necessarily represent the views of, their employer.
  • Ask them to be mindful that people’s views on subjects differ, which are often nuanced and shaped by their own experiences, so any debate they engage in on social media should be respectful and considerate.
  • Be clear on whether you intend to monitor use of social media and when you may take action.

Use of social media by employees, workers and consultants: How we can help

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.

[1] Grainger plc and others v Nicholson [2010] IRLR 4

[2] Dr David Mackereth v The Department for Work and Pensions [2022] EAT 99