The recent high-profile sackings of Danny Baker and George Galloway from their respective jobs at the BBC and TalkRadio have both made headlines over the last month, and each case has emphasised the difficulties employers can encounter with their employees’ use of social media.
Danny Baker’s tweet, described by the presenter himself as “a serious error of judgment”, referenced the Duke and Duchess of Sussex’s new baby and included a picture of a chimpanzee. Accusations of racism quickly led Baker to take the tweet down and apologise, however by then the damage was already done. Whether you think the tweet in question was deliberately offensive or foolishly naïve, it clearly put the BBC in a difficult position. Images of stunned executives scrolling miserably through their Twitter feeds in Broadcasting House spring to mind.
The allegations of blatant anti-Semitism in response to George Galloway’s tweet – which linked Tottenham Hotspur FC and the state of Israel – drew no apology however. In fact, Galloway appears convinced of the righteousness of his cause in the aftermath of being fired. He also seemed confident of his chances of success in any resultant legal dispute, firing off a punchy “See you in Court guys” to his former employers on Twitter.
Amy Wren’s recent Top 10 Social Media Dos and Don’ts provides a valuable guide to employers looking to avoid problems in the area of social media, and it is worth looking at both Baker and Galloway’s firings from an employment law perspective to see how these issues play out in practice.
The first thing to point out is that, although both Baker and Galloway had their shows axed almost immediately, this isn’t a luxury necessarily available to all organisations. Based on publicly available information, both are likely to have been independent contractors (rather than employees). If so, this means that they would not qualify for a number of protections available to employees, notably the right not to be unfairly dismissed (either that or the BBC and TalkRadio decided that the legal risks of immediate dismissal were worth it compared to the negative publicity of not being seen to do anything!).
Protection from unfair dismissal ensures that qualifying employees can only be dismissed for a fair reason, after a fair process and if it was reasonable to treat the reason as a sufficient reason for dismissal. This includes following a full and proper investigation and disciplinary procedure, which clearly neither Baker nor Galloway received. Although summary dismissal can be fair in some circumstances (such as in cases of gross misconduct) the necessary application of the Acas Code of Practice on Disciplinary and Grievance Procedures means employers must normally spend some time investigating and holding a disciplinary hearing, and also have to allow employees the right to appeal. It is certainly much easier for organisations to get rid of individuals who are not employees.
Making inappropriate comments on social media by itself will not always make it fair for an employer to dismiss an employee. The general rule is that actions outside of the workplace are only likely to be a fair reason for dismissal if they can be linked to some damage suffered by the employer, such as where their business, their other employees, or their customers are adversely affected. In the case of offensive social media use by employees, the Employment Tribunals and the courts will look at the nature and seriousness of the comments made, and the damage to the employer’s reputation to determine whether a dismissal is unfair.
Balancing the right to free expression with the needs of employers has not always been easy. Judgments in this area have focused on whether employees are using social media for work-related purposes, whether the social media accounts used are private, and if a social media message “could be seen as being inextricably linked to” an employer. For Danny Baker and George Galloway, it could well be said that their wide following on public Twitter feeds, and their obvious and public association with the BBC and TalkRadio, means anything controversial they tweet at all could easily damage the reputation of those organisations, and their sackings were understandable on these terms. But it remains to be seen how this area of law will develop alongside the seemingly unstoppable rise in social media usage, and the dangers of over-policing the lives of employees outside of work are not to be taken lightly.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2019