Is expressing a controversial opinion worthy of a red card?

Calls to sack TV presenter Gary Lineker followed by colleagues taking a stand to back him highlights the problem an employer can face when those paid to do a job voice an opinion.

The Match of the Day host has been at the centre of a media storm after he compared the language used by the government to launch its new migrant policy with 1930s Germany. And it was not the first time that Lineker has sparked controversy.

In October, he was publicly reprimanded by the BBC for breaking impartiality guidelines after he tweeted about the Conservative party taking money from Russian donors [1 cited 14.3.23]

Every employer, regardless of the size of the organisation, has the right to take disciplinary action against anyone it employs, if they say or do anything that can harm the reputation of its business.

Politics is partisan and by its very nature divisive. The position the BBC now finds itself in, is one that any employer could face.

The widespread use of social media allows all employees to voice any controversial viewpoint they wish, without initial censure, on any political matter or policy.

The ability to do so via words or video is at our fingertips and never far away.

It can create a huge headache for an employer if an employee says or does something, which can be seen as inappropriate and reflect badly on it.

The common defence is ‘I have a right to my opinion’, but how far does that really allow any employee to go in what they can say and do?

It is something the BBC will have to consider when contemplating the future of Lineker, a freelancer employed to front its flagship football highlights programme.

The former England striker found himself in trouble with his TV bosses after the government announced what it described as ‘ground-breaking new laws to stop the boats’, in a bid to stop people entering the UK illegally [2 cited 14.3.23]

Lineker responded to a video posted online of Home Secretary Suella Braverman speaking about the policy, remarking: ‘Good heavens, this is beyond awful’ [3 cited 14.3.23]

He then added in response to a critic: ‘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?’

It led to Lineker being made to step down from hosting Match of the Day. A number of colleagues then backed him and chose not to attend work, which then caused chaos with the weekend TV and radio sports schedules.

A number of sports shows were subsequently cancelled, the BBC director general issued an apology and even the Prime Minister Rishi Sunak called for the matter to be resolved quickly [4 cited 14.3.23]

At the heart of the issue will be whether there has been a breach of the BBC social media guidelines.

The broadcaster’s directions asks individuals “to avoid taking sides on party political issues or political controversies and to take care when addressing public policy matters”[5 cited 14.3.23]

Such a policy will be vital in determining what, if any, is the appropriate action to take in the circumstances.

All employers should develop a policy that makes it clear to staff what is, and what is not, acceptable social media use both inside and outside of work.

The internet, emails, smart phones, and networking websites provide a quick and easily accessible way for any employee to air an opinion.

The challenge for you as an employer, is knowing what you can and should do if you have any legitimate concerns:

Can I dismiss an employee for voicing an opinion?

In some cases, yes, but it will depend on the nature of the opinion and circumstances.

Under the Human Rights Act 1998, which is incorporated into UK law, we all have the right to the freedom of expression [6 cited 14.3.23]

But the protection from the Act is not absolute, and if an employee voices an opinion, in any setting, that is discriminatory, harassing, or offensive, or if it undermines your interests or reputation, then it can be fair grounds for dismissal e.g. if the opinion is an expression of racist views or it publicly criticises your business.

However, if an expressed view can be considered questionable, but it clearly does not breach any law or company policy then dismissing an employee is such circumstances could amount to an unfair dismissal.

Freedom of expression does not provide all encompassing protection for any employee from their actions. You can dismiss an employee for an opinion that falls outside the acceptable boundaries of behaviour.

Can I sack an employee for voicing a political opinion?

It is generally unfair to dismiss an employee based solely on their political opinion.

An employee does have a legal right to hold and express political opinions, and they have some protection from unfair treatment based on those opinions.

The Equality Act 2010 outlaws discrimination based on religion or belief. Belief for this purpose means any religious or ‘philosophical’ belief [7 cited 14.3.23]. The law does not say ‘philosophical’ can include ‘political’ belief.

A dismissal based on political opinions or affiliation is not automatically considered unfair, unlike dismissals because of a protected characteristic or whistle-blowing.

But in contrast to an unfair dismissal claim that requires an employee to have at least two years’ service, there is no qualifying period to make a claim to an employment tribunal if a dismissal is because of political opinions or affiliation.

Why can my employee express a political opinion but those in some professions cannot do so?

Some occupations, such as civil servants and police officers, have tighter rules to ensure they remain politically neutral and impartial.

The Police Regulations 2003 [8 cited 14.3.23] and the Police (Conduct) Regulations 2020 [9 cited 14.3.23] bans officers from actively taking part in politics, standing for election or expressing any political opinion in public or in a way that could call into question their impartiality or independence

The Civil Service Code, which applies to all civil servants, bans staff from expressing personal political opinions in public or acting in a way that can be seen as promoting any particular political party or agenda [10 cited 14.3.23].

How do I judge if an employee’s opinion is offensive?

There is no definitive answer, as it is a subjective process.

You will have to consider the circumstances in which the comment is made, determine if it is outside the boundaries of acceptable behaviour and if it breaches any company policy.

There are several factors to consider in deciding if an opinion is unacceptable, which include:

• The nature of the opinion: If it is discriminatory, harassing, or otherwise offensive.

• The context: Was it in a public setting e.g. social media or in a private setting, such as a conversation with a colleague.

• The impact of the opinion: Has it had or is it likely to have a negative impact on your business, reputation or on other employees.

• Policies and procedures: Does it breach any specific policies and procedures regarding the expression of opinions by employees.

• The views of others: Is it offensive to colleagues, customers or stakeholders.

In any such case, it is vital that you conduct a fair and impartial investigation into the matter

So, can I take disciplinary action against an employee because I object to their opinion or political viewpoint on social media?

Yes, because you can discipline an employee for social media posts if you believe it breaches your policies, damages your reputation, or could negatively impact the ability of the individual to perform their duties effectively.

But you must follow a correct and fair procedure: investigate, review policies, give the employee an opportunity to respond, consider the impact and then take appropriate action.

If you are considering disciplinary action against an employee for voicing a controversial or offensive opinion you should always seek expert advice first.

Our team of experts are on hand to advise and support you in such cases visit Employer Support Centre.