Bishop & Sewell

There are many cases where employees have lost their jobs where an employer can argue that there has been damage to reputation or trust has been breached following the posting of remarks or photos on social media.

The sanctioning of BBC staff for not being impartial is not new either. BBC DJ, Pete Murray in the early 80s and Kenny Everett in 1987 were both sanctioned for expressing political views, with the Pete Murray’s subsequent dismissal directly linked back to his comments at the time. Also, this is not limited to the BBC. Talksport was reported to have sacked James Whale for urging people to vote for Boris Johnson as London Mayor in 2008.

It is the means of making impartial statements, namely social media and online comments, which is now under scrutiny.

Tim Davies is effectively stating that, whoever works for the BBC in a public facing role or significant editorial position, is an ambassador for the Corporation whether they are on air or not and irrespective of their presenter role and must be alert to their social media commentaries.

I can see that the BBC is not like other employers when it comes to impartiality. As part of its contract with audiences, BBC journalism is required to be impartial under the BBC’s Charter and Agreement reinforced by editorial guidelines.

Other jobs in the public sector, are also subject to a similar expectation of impartiality. Senior civil servants and senior officers in the armed forces are expected to keep their political views to themselves. This may or may not be written into contracts, but it is certainly contained in codes of conduct.

The situation could be complicated by the fact that the Twitter handles of many BBC journalists are not their own but contain “BBC” before a journalist’s abbreviated name and objectively look to be the voice of the BBC.

There is a freedom of expression angle which is relevant to Tim Davies’ remarks. This is a right to hold your own opinions and express them freely. This right is subject to a duty to behave responsibly and to respect the rights of others and public authorities can restrict this right provided this is done in a proportionate way.

On balance, I can envisage situations where a dismissal in these circumstances for breaching impartiality rules could be justified as fair, given the Charter and guidelines where being impartial fundamentally goes to the heart of the job.

It is important to remember why this sanction is important for a broadcaster and also to reflect that the original BBC Charter dates back to a period when broadcast media was a singular weapon in spreading propaganda. It still is in some parts of the world, which is why successive Governments, and the BBC itself, presumably believe that this element of the Charter remains important.

The BBC’s position seems to be that, given the power that broadcasting wields, and its particular role as an impartial reporter of fact, it is not unreasonable to insist (with strong sanctions for breach) that all its key employees remain completely neutral wherever they are speaking.

The normal sanction for inappropriate social media posting is dismissal. How does an employer force an employee to suspend a social media account which is not its own account? I expect what is meant here is that dismissal would follow a warning requiring an account to be closed down.

Having a social media policy and guidelines with a reference in employment contracts that a breach of the policy could mean dismissal without notice is the starting point for HR professionals looking to tackle social media comments which cross the line.

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For initial advice or to arrange a meeting with one of our team, please email or contact 020 7631 4141 and ask to speak to our Employment team.

The above is accurate as at 05 October 2020. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.

David Little

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