Gary Lineker Legal Brief: How to avoid a red card on Twitter!

I had a reasonable case of writer’s block when starting this blog, and after reading a post on LinkedIn about a ChatGPT experience, off I went to try the most talked about corner of the Internet. 

A rarity for me with these sorts of things, it didn’t disappoint. I asked it to come up with a ‘humorous’ blog title about Gary Lineker and social media for me. Whilst ChatGPT’s humour might be questionable (it’s the sort of ‘Dad Joke’ humour that makes you roll your eyes) it did give me some inspiration for where to start this post. 

Specifically it suggested:

• Gary Lineker- The Twitterati’s favourite crispy Tweet
• Gary Lineker- From Football Legend to Social Media Defender
• Gary Lineker Scores a Twitter Hat Trick- Goals, Goals and Goal Posts.

I think I can hear your groaning in despair from here…..

Interestingly, I had a client express some nervousness when I offered to write a social media policy for them, they were worried about ‘doing a Gary Lineker’. If you are an employer, has Lineker changed anything, and what should you be doing with regards to social media and your employees activities? The emerging mood would suggest that some employers are wary of setting boundaries for fear of having to move them.

Establishing a social media policy for your workplace 

The starting point needs to be a social media policy, setting out the expectations of your employees in the virtual world, where those boundaries start and end and why you as an employer has an interest in what they are doing. 

Employees have a private life and that should be respected, however where an employee and an employer can be easily connected on social media, and the employee’s behaviour falls below a standard, where it could reasonably reflect badly on the reputation of the employer as a result, it could form a conduct issue at work, even if the post was created and posted in private time. 

You shouldn’t necessarily be trawling social media and monitoring what your staff are doing, but if a report reaches you that an employee has behaved in a way that is unacceptable, it could warrant an investigation. Knee jerk reactions around the reputation of the business and how easy it is to identify the individual as an employee should be avoided, you need a reasonable basis to conclude that the reputation is at risk.

Lessons from case law 

Taylor v Somerfield is a case I often refer to here, where a business dismissed an employee for posting a video on Youtube that only received 8 hits. No complaints were received from customers and the employer was not identifiable in the footage. 

More in line with the Gary Lineker issues, what about someone who expresses strong views online? The recent case of Forstater v CGD Europe confirmed that someone who held gender critical views was discriminated against for her employer’s conduct in response to her social media postings, which whilst found to be ‘offensive’ were found to be capable of protection under the Equality Act as a ‘belief’.

Controversial beliefs, which may be offensive to some, should therefore be treated cautiously. An employee has the right to freedom of speech, we don’t have the right ‘not to be offended’, even if we do not believe the employee to be correct. 

However, where a post crosses the line and for example falls into a criminal standard (threats to kill, threats to do harm, evidence of criminal behaviour) we are on much more solid ground. What makes the path to disciplinary much easier is if your social media policy sets out expectations that whilst an employee is of course entitled to a private life, they should conduct themselves on social media in the knowledge that it is a publicly available space, and if their conduct could reasonably bring the employer into disrepute or demonstrates actions contravening the employer’s policies, disciplinary action may be taken.

How we can help 

If you need assistance drafting a social media policy, would like yours reviewed or require advice in relation to a social media issue with employees, please do not hesitate to contact Elissa Thursfield.

Alternatively, head over to our employment law services for employers page for more information.