Recent conflict between sports presenter Gary Lineker and the BBC over the broadcaster’s social media policy has potentially exposed a legal loophole for businesses, experts have suggested.
Lineker was suspended by the BBC last week following a tweet comparing the government’s new asylum legislation to Germany in the 1930s. The BBC claimed this tweet went against its social media guidance, but questions were raised over whether the policy applied to Lineker, who works for the broadcaster as a freelancer.
However, BBC director general Tim Davie has since lifted the suspension and apologised for “confusion” caused by “grey areas” of its social media guidance – which was only released in 2020.
In a public statement, Davie said guidance should be “clear, proportionate and appropriate”, and has revealed that the BBC will launch an independent review into its existing social media policy. It will also have a “particular focus” on how the policy applies to freelancers.
Alan Price, chief executive of BrightHR, says the case serves as a “timely reminder” to employers when it comes to reviewing their social media policies, and making amends “to ensure [they are] reasonable” in today’s digital environment.
Davie’s recognition of the confusion “highlights the need to conduct regular reviews of all contractual policies, to ensure they continue to provide the most benefit to all”, Price adds.
But could other businesses be stung by the same arguments, and what steps do they need to take to ensure their social media policy is foolproof?
Audit your social media policy
Paul Reeves, partner at Stephenson Harwood, is calling for companies to implement “robust policies” for social media use, “regardless of whether it is an employee, worker or contractor” to ensure employers are protected. “Where social media policies are concerned, clarity, compliance and consequences are key,” he says.
“It’s essential that employers are not brought into disrepute. Social media storms brew easily and can quickly spiral out of control, attracting negative publicity. Robust and workable policies protect employers, allow all employees, workers or contractors to know what is and isn’t permitted and provide a framework in which to operate.”
Caroline Yarrow, partner at BDB Pitmans, says while the BBC’s policy was only updated in 2020, the broadcaster’s decision to review its social media guidelines is timely, and should act to “remind employers more widely to review their own social media policies to ensure they are still current”.
Can it apply to freelancers and contractors?
But in the case of Lineker, and other freelancers working in the UK, to what extent can an employer enforce the rules of their policies?
Martin Williams, head of employment and a partner at Mayo Wynne Baxter, says there are difficulties in imposing tighter guidelines on freelancers, adding that “freedom of speech can be impinged when there is a contractual relationship”.
For Lineker, the BBC’s editorial guidelines, section 15.3.13 (Public Expressions of Opinion) state that “the risk [of impartiality] is lower where an individual is expressing views publicly on an unrelated area; for example, a sports or science presenter expressing views on politics or the arts”.
Referencing Lineker’s case, Williams adds: “The fallout over the weekend demonstrates how difficult it can be to manage staff who are freelancing. As they are not employees it is open for them to say they will not be available for a particular engagement.”
Antonio Fletcher, head of employment law at Whitehead Monckton, agrees that while social media policies can be extended to apply to contractors and freelancers, companies should be careful to not exert too much control over individuals. “Any restrictions on individuals’ activities should be limited to those necessary to protect the organisation and its potential risk areas and should be considered in light of this, while not impacting more than is necessary on individuals’ external activities,” says Fletcher. “This is particularly so for contractors, who, by their nature, should be directed less than employees in terms of their activities.”
And, on top of the extent to which staff have to adhere to policies being dependent on the worker status, the way that an employer can deal with a breach of policy also varies. Yarrow says that depending on the severity of the breach, one option could be not to work with a contractor again, but adds that “in lesser cases, care should be taken not to treat a contractor in line with an employee disciplinary policy under which warnings might be given as to do so might confuse or blur the lines between employee and contractor status, particularly if the contractor is well-integrated into the organisation and/or is a longstanding supplier of services”.
Addressing the gaps
For businesses looking to amend social media policies, Joanne Frew, global head of employment and pensions at DWF, sends the reminder that the implementation of new social media policies requires the contractor to agree to the terms and for them to sign a document as evidence. But, she warns, difficulties could occur. “If the contractor or freelancer refuses to sign the policy there is little the organisation can do to force the change; however, they can stop engaging the worker (once any contractual arrangements permit this),” says Frew.
She suggests implementing changes for freelancers and contractors as part of negotiations for new contracts of work, rather than at a mid-point, making agreement to the social media policy part of the new arrangement. “Again, if the contractor or freelancer refuses to sign, there is little the organisation can do and it will all come down to a question of who has the greater bargaining power,” she adds.
Despite this, social media policies can “easily be changed without seeking agreement from the entire workforce”, says Frew, as they are often said to be non-contractual.
“If this is the case, the business may want to reference compliance with the policy in the main contractual documentation with the contractor or freelancer to ensure there is a contractual duty to comply with the policy,” she adds.
