The Lineker Fiasco – What Does the Law Say?
The BBC might have scored a massive PR own goal after suspending Gary Lineker – but were their actions lawful?
Unless you’ve been in hibernation for the past month, you’ve probably heard something about Gary Lineker’s temporary suspension from Match of the Day by the BBC. For those lacking context, on Tuesday 7 March 2023, a video was posted to Twitter in which Home Secretary Suella Braverman unveiled the UK Government’s plans to deal with migrants crossing the Channel in small boats, claiming that the UK was being “overwhelmed”. Lineker posted several tweets in response to the video, describing the Home Office’s policy as “immeasurably cruel” and stating that the language used to launch the policy was “not dissimilar to that used by Germany in the 30s”.
On Friday 10 March 2023, the BBC hierarchy requested that Lineker make a public statement apologising for what he had said and promising to be more careful on social media. Lineker refused to give the statement, and the BBC suspended him from that weekend’s edition of Match of the Day. Various other presenters then refused to appear on the show, in solidarity with Lineker, meaning that Match of the Day ultimately aired as twenty-minutes of football highlights, with none of the usual punditry. Following public backlash and fears that the “solidarity strike” might spread out of BBC Sport, the BBC relented, and reinstated Lineker on Monday 13 March 2023.
Debate has raged online and in the House of Commons over whether Lineker’s comments were accurate or acceptable. But, from a legal perspective, it is interesting to consider whether the BBC was justified in suspending Lineker for his tweets. The BBC has claimed that Lineker breached their social media guidelines, which are intended to protect the broadcaster’s reputation of impartiality. This is not the first time that Lineker’s politically charged tweets have drawn ire from some elements of society – but when complaints were made about his tweets regarding child migrants and Brexit in 2016 and 2018, the BBC defended Lineker, asserting that he was a freelance presenter, that the tweets came from Lineker’s personal Twitter account, and that the strict rules of impartiality which applied to journalists did not apply equally to sports presenters.
At the time, the BBC’s social media guidelines confirmed that the risk to compromising the broadcaster’s impartiality was “lower where an individual is expressing views publicly in an unrelated area, for example, a sports or science presenter expressing views on politics or the arts”. Since then, the rules have become more stringent, with new guidelines highlighting an “extra responsibility” on “high profile” presenters.
This strict policing of Lineker’s expression of personal political views by the BBC may raise questions about Lineker’s employment status. Officially, Lineker is a self-employed freelancer – but the use of this label is of little relevance and given the level of control that the BBC sought to exercise over Lineker’s social media posts from a personal account, there may be an argument that he is, in reality, an employee with employment rights. Assessing employment status is complex, but one of the key indicators is the level of control exercised over the individual – requiring strict adherence to a social media policy and governing an individual’s use of their personal Twitter account is not what would normally be expected from a relationship of principal and self-employed contractor.
If Lineker were an employee of the BBC then the treatment of him could have potentially given rise to a variety of employment claims. Employers may use internal policies to justify taking action to discipline employees – but the mere existence of a social media policy does not provide absolute protection. The implied contractual term that employers should not act in a manner calculated or likely to cause a breakdown in the relationship of trust and confidence means that care needs to be exercised when suspending employees, and any disciplinary sanctions need to be applied consistently. Many commentators have pointed out the discrepancies between the treatment of Lineker and that of other BBC staff, past and present; perhaps most notably, Andrew Neil, who regularly shared his own views on political matters and chaired The Spectator magazine while hosting politics shows on the BBC.
It is also possible that if Lineker were an employee he may seek protection from discrimination on grounds of his “religion or belief”. It is important to note that political beliefs can not be philosophical beliefs for the purposes of discrimination law – but the English courts have said that veganism and a belief in man-made climate change can both be philosophical beliefs. The line between a protected philosophical belief and an unprotected political belief is increasingly blurred, and whether Lineker’s beliefs would be protected is a matter for debate.
In any event, even if an Employment Tribunal were to consider Lineker’s beliefs as philosophical and therefore protected, any discrimination claim may well fail on the grounds that he manifested his beliefs in an objectionable manner. Had Lineker simply criticised Government policy, his standing from a discrimination perspective would have been stronger – but the comparison to the rhetoric of 1930s Germany could be interpreted by a Tribunal as unnecessarily provocative and therefore fall afoul of the objectionable manifestation exception.
Regardless of whether the BBC’s actions were justified from a legal perspective or whether Lineker would have grounds for an employment claim, there are practical considerations. The BBC’s treatment of Lineker sparked a revolt amongst its sports pundits and journalists, which looked set to spread to other teams.
There is an important lesson to be learned here for employers – even where you might have all your bases covered from a legal perspective, the practical ramifications of taking action against staff should always be considered, particularly where there is a risk of damaging workplace relations or your public reputation.
If you need any advice on employment status, social media policies or practical advice on employee issues please do get in touch at [email protected]