The Memo Longer Read: Gary Lineker vs the BBC

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Gary Lineker vs the BBC: What can go into an employment contract?

Nikolai Viedge – 27 March 2023

If there’s one thing that the BBC’s very public spat with (and subsequent reinstating of) Match of the Day presenter Gary Lineker taught us, it’s that what goes into a contract matters. Whether it’s the freedom to hold an opinion or the freedom to express it, the case served to demonstrate why it’s tricky for employers to have as much control over the way their staff behave as they might like. So, what exactly can an employer put into an employment contact? To find out more, we spoke to associates at top-ranked employment firms Lewis Silkin and Baker McKenzie

“There are a few things that go into an employment contract,” Carly Mather, managing associate in employment at Lewis Silkin tells us. “Section 1 is called the mandatory provision. It’s what must go in.” This includes things like hours, how you’ll be paid, job title and so on. “What we’re talking about here [in the case of Lineker] is another part of an employment contract. The intrinsic, unwritten part which is essentially that there is a mutual obligation to work with trust and confidence.” And this has implications for the way either party behaves. Richard Cook, employment associate at Baker McKenzie (a firm that has historically acted for the BBC), points out that (entirely separately from the Lineker case), “employers have an interest in protecting their reputation, and this means they can restrict employees’ behaviour online.”

But how can employers square this with the protected right to freedom of expression? Cook explains that human rights, as per the Human Rights Act 1998, come in three categories: absolute rights (which cannot be restricted); limited rights (which can only be restricted as per the situations set out in the statute); and qualified rights (which can be restricted to protect other people’s rights, or if it is in the interest of the wider community). It is these last rights that employment contracts can limit so long as that infringement is fair and is a proportionate means of achieving the goal. In other words, a blanket ban on using social media, for example, would potentially be unlawful on the basis that it’s not a proportionate means of achieving the goal of protecting a company’s reputation. It is for this reason that “journalists often will be clear that their views are their own.” Cook adds, “If an employee doesn’t make it clear, then it’s not a big leap to ascribe that view to their employer.”

According to Mather, in the case of Lineker, “the BBC was saying ‘you understand our position as a quasi-public sector organisation. You understand that we’re politically neutral. If you don’t conduct yourself in that way, you’re in breach of the implied trust and confidence.’” Yet from Lineker’s perspective, Mather continues, it was neither a case of speaking on behalf of the BBC nor representing them. So, what could have been done to stop this situation from developing? “Some of the coverage that followed the saga was ‘we need to do more due diligence,’” says Mather. Essentially, if an employee makes it “really clear that they’re expressing their own view and won’t bring the organisation into disrepute, then that’s okay.’” But, she adds, “there will always be a grey area when you’re expressing things that are contrary to the values, reputation, or culture of the employer.”

“When social media became popular there was a raft of cases initially,” Cook explains. In one case, a Wetherspoons employee, who criticized a customer online, was fairly dismissed, says Cook, after the customer in question saw the post and it was felt that the post implicated Wetherspoons. Yet in another, a group of supermarket employees, who were dismissed after posting a YouTube video of them messing around in a warehouse, were ruled to have been unfairly dismissed. In this case, says Cook, “the video had been viewed eight times and five of them was the person investigating them.” In short, the claim that the employer’s reputation was tarnished because of the video couldn’t be upheld.

The complexity is further compounded by the fact that “there are specific protections for religious or philosophical beliefs,” which, Cook explains, are “protected beliefs under the Equality Act.” An expression of these views on social media cannot be restricted, says Cook; and in the past, people have been able to show that particular instances of social media posts “were a manifestation of protected beliefs.” There are, says Cook, “lots of things to be thinking about” in this area.

From a disciplinary perspective, “employers have to show fair reason and follow fair procedure,” Cook tells us. In order to constitute fair reason, it must be the case that the least reasonable of reasonable employers could plausibly have dismissed the employee on the same basis. “If the answer is yes, then they can dismiss fairly.” As Cook notes, this might seem like a low bar, but “when you bring in a human right that elevates the bar. The tribunal must take into account the human right to determine if the dismissal was fair in the traditional sense, and that there was a legitimate business interest for doing what they did” (this is the fair and proportionate bit mentioned earlier).

Are there other human rights issues that could be limited in an employment contract? Freedom of expression is really the main one, think Cook and Mather. But, as Mather notes, there might be cases “like your right to practice a particular religion. If your contractual hours are 9am to 5.30pm Monday to Friday, for example,” suggests Mather, “that will have an impact on Orthodox Jews who practice Shabbat. But that doesn’t invalidate the contract” she continues. In these instances, Mather suggests “a conversation” between employer and employee “about what might need to change in those contractual terms. It’s the beginning of a pragmatic conversation; a look at what the culture and environment are like. If there is a problematic clause it could be remedied by agreement.”

For those interested in employment law, the intersection between freedom of expression and employment is likely to remain a source of work for both claimant and defendant employment lawyers, particularly in the age of social media.