What businesses can learn from the Lineker debacle

My recent LinkedIn and Twitter posts regarding the Gary Lineker/ BBC debacle certainly got people talking. Whilst I didn’t manage to reach the lofty heights of the four days of front page headlines that Lineker did, I thought I would take the opportunity to provide a more in depth analysis my views on the matter and what lessons businesses can learn from the situation.

What started this?

Gary Lineker, former England international footballer and BBC’s Match of the Day host since1999, is well known to be a man who wears his heart on his sleeve. Whether that is looking out for Gazza in a World Cup semi final or relaying his views about current events on social media, Lineker’s opinions form part of the man himself.

So when the news broke that government were looking to amend the UK’s immigration laws, Lineker took little time in calling out what he deemed to be an “immeasurably cruel policy”;

The BBC, headed by Tory party donor Richard Sharp, didn’t take Linker’s comments well and claimed the tweet breached guidelines. Lineker was subsequently suspended from hosting Match of the Day.

What difference does being a freelancer make for Lineker?

This is all boils down to the employment status of the individual . Being a freelancer puts Lineker outside of the scope of BBC impartiality guidelines, albeit individuals “clearly identified with the BBC” should behave “in ways that are consistent with the BBC’s editorial values and policies”. It also distances Lineker from being “under the control” of BBC; more on this later.

We have been over employment status before (see my article from 2016 when I correctly anticipated that the courts would find that Uber drivers were not self employed contractors for a refresher https://www.bpe.co.uk/news-and-events/2016/08/the-case-against-uber/ ) and why it is extremely important that businesses identify the correct status of individuals.

So lets briefly look at the control element. One of the key tests for whether an individual is truly self employed is how much control over the individual the company has. Now, if, as alleged, the BBC stated that Linker can only tweet messages approved by them, or that complies with their guidelines, then that would add to the argument that Lineker was in fact a worker or worse, an employee of the BBC. As I stated in my tweet at the time, the BBC are playing with fire here. I doubt that either party would want to be found in a true employment relationship at this time.

And Lineker has an extra reason to push back on the BBC’s assertions. HMRC are currently pursuing Lineker for nearly £5m worth of income tax and National Insurance they say Lineker owes. HMRC claims that contracts signed with the BBC and BT falls inside IR35 and therefore Lineker is liable for the payments under their disguised employment rules. All of a sudden, the employment status issue becomes even more important.

Should BBC have any other concerns?

Whilst we don’t have print room to go into detail, the BBC should be concerned that enforcing their position against Linker may be a breach of Article 10 Human Rights Act; freedom of expression. They may be able to show a legitimate aim defence, however I cant on the face of it, see such a defence being successful.

After discussions, the BBC have backed down and allowed Lineker to continue in his role on Match of the Day without, as far as we are aware, any restrictions on what he can tweet or what opinions he can make on current affairs. I believe that the BBC had no choice here and they have no doubt came to this conclusion following legal advice. 1-0 Lineker.

Does this mean I can never sack a contractor for their opinions?

This is a question that we get asked a lot, even before the Lineker story came to light. Whilst contractors cannot claim the same rights as employees (such as unfair dismissal) they can still bring claims of breach of contract and potentially even discrimination.

Generally these days it is the contents of a contractors social media posts, conflicting with a businesses values that sees companies looking to terminate contracts. Whilst in certain circumstances such scenarios may be worthy of termination of a contract, businesses should always take legal advice before doing so as a breach of contract claim can be costly.

Separately, it is important for employers to ensure they accurately assess an individual’s employment status to avoid any legal ramifications. If an individual is incorrectly categorised, they may be entitled to unpaid wages or holiday pay and HMRC will also be interested in the set up.

UPDATE: following submission of this article, it has been confirmed that Lineker was successful in his tax case. I make that 2-0 Lineker and not even a Gazza tear in sight.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.