Most clashes between employers and workers over the use of private social media accounts – at least those that have reached the courts – have concerned comments that either clearly bring the employer into disrepute or interfere the rights of others. What was unusual about the Gary Lineker affair was that he had sought to take part, in a private capacity, in a debate on a matter of considerable public interest – the Government’s immigration policy.
Mr Lineker’s intervention was amplified by size of his twitter following, but the question his dispute with the BBC raises, in the broadest sense, is whether employers are entitled to restrict the private expression of opinions which are inconsistent with their brand or business objectives.
Unfair dismissal law does not directly address politics, leaving dismissals for expressing political opinions to be assessed through the prism of the reasonableness test in the Employment Rights Act. That requires employment tribunals to assess whether, in all the circumstances, the employer acted reasonably or unreasonably in treating its reason for dismissing an employee as a “sufficient reason”. Automatically unfair dismissals are an exception to this general rule, but dismissals for expressing political or similar opinions do not make it onto the long (and growing) list of such dismissals set out the Employment Rights Act.
There is one important qualification to this broad picture, in the shape of an amendment which took effect in 2013. That provides that the normal qualifying period (currently two years) does not apply “if the reason (or, if more than one, the principal reason) for the dismissal is, or relates to, the employee's political opinions or affiliation.”
This exception from the qualifying period has been interpreted relatively narrowly in the only Employment Appeal Tribunal decision to address it so far: Scottish Federation of Housing Associations v Jones . The employment tribunal had decided that Ms Jones could rely on the political opinion exception if she could show that she had been dismissed because she had failed to adhere to her employer’s policy of political neutrality (ie by indicating her intention to stand as a Labour candidate in the 2019 General Election). However, the EAT overruled the tribunal. Assuming Ms Jones could prove she had been dismissed for this reason (something the Federation denied) it would not have been objecting to her particular political beliefs or affiliations, but seeking to enforce its neutrality policy, which would have precluded Ms Jones taking up a “formal role” with any political party.
Discrimination law: protected beliefs
Discrimination law has a wider reach than unfair dismissal law, since it applies to non-employee workers as well as employees, regardless of their length of service. However, it will not normally be engaged in this context unless the views in question amount to an expression of belief as defined in the Equality Act.
The Act says that belief means “any religious or philosophical belief”. That needs to be read in the light of the guidance laid down by the Court of Appeal, which opens the way for a wide range of philosophical beliefs to be protected. To qualify they must be beliefs, not opinions, about a “weighty and substantial aspect of human life” and attain a certain level of cogency. They must also be “worthy of respect in a democratic society”. Generally, employment tribunals have interpreted these guidelines as excluding affiliation to a particular political party. However, in Jones the EAT was prepared to uphold the tribunal’s decision that Ms Jones’ belief in “participatory democracy” was protected.
The fact that a belief qualifies for protection does not necessarily prevent an employer from seeking to impose restrictions on the way it is expressed, even in a private capacity. As long as the worker is not subjected to a detriment for holding a particular belief, restrictions on its expression will belong in the territory of indirect rather than direct discrimination. That means that the employer will have a defence to a discrimination claim if it can establish that the restrictions are a “proportionate means of achieving a legitimate aim”. Case law has demonstrated that employers’ business objectives are legitimate aims, but the contractual restrictions it seeks to impose (and any sanctions for their breach) must be limited to what is necessary to achieve those aims, and must recognise the worker’s rights under the European Human Rights Convention.
In a situation like Mr Lineker’s, therefore, the Equality Act is unlikely to add significantly to the legal weaponry at a worker’s disposal to challenge an employer’s restrictions. There is an important qualification, which relates to the legal protections against victimisation, as illustrated by the Central London employment tribunal’s ruling in Ms. E. Gutfreund-Walmsley v Big Lottery Fund Ltd.
In most cases where workers express personal opinions on social media, the law of victimisation is unlikely to be relevant, since it requires the definition of a “protected act” to be satisfied. That involves bringing (or giving evidence in) proceedings brought under the Equality Act, or making an express or implied allegation that another person has contravened it. In Ms Gutfreund-Walmsley’s case these provisions were engaged because she tweeted in a private capacity about her experience at the now notorious President’s Club, pointing out that sexual harassment of the hostesses was widespread. Despite the tweet being against the Lottery Fund’s social media policy, the employment tribunal ruled that she had been victimised when her line manager subjected her to intrusive questioning and strong criticism about her tweet, which had gone “viral”.
In most cases where workers’ opinions are expressed in a private capacity, article 10 of the Convention - which seeks to guarantee freedom of expression subject to the familiar exceptions which apply to all qualified human rights – will potentially be relevant.
However, the indirect way the Convention has been incorporated into domestic law by the Human Rights Act 1998 means that, in the private sector at least, Convention rights will be an interpretive tool rather than creating any free-standing rights.
Herbai v Hungary  concerned a human resources management expert at a bank in Hungary, and gives some pointers as to how our courts might approach a similar issue arising in unfair dismissal proceedings in the UK. The Bank’s code of conduct prohibited its employees from publishing any information relating to its “functioning and activities”. Mr Herbai was dismissed because of two blog posts he had written on HR strategy and tax rates on a knowledge-sharing website he had co-founded. After his dismissal had been upheld by the Hungarian Supreme Court, he brought proceedings against Hungary before the ECHR. It ruled that article 10 was engaged and the Hungarian courts had failed to carry out the requisite balancing exercise between the individual's right to freedom of expression and the employer's rights to protect its legitimate business interests. It explained the factors which domestic courts should consider when carrying out a balancing expertise of this kind. These included the nature of the post; the motives of the author; whether the employer could demonstrate actual damage to its business because of the post; and the severity of the sanctions imposed.
The position may be different in the case of public sector workers, who may be able to rely directly on the Human Rights Act without the need meet the qualifying conditions for bringing an unfair dismissal claim.
Employers should be aware of the protections our domestic law provides for individuals to expressing their personal opinions on social media when these are in conflict with their employer’s interests, even where they do not amount to the expression of protected beliefs.
This is an edited version of an article first published in the New Law Journal on 19 May 2023
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