As promised earlier this year, the BBC’s director general has implemented tough new guidelines for staff, seeking to address concerns around bias at the corporation. Last month, Tim Davie told a parliamentary committee that not only would the broadcaster roll out new social media guidelines, but it wouldn’t shy away from enforcing breaches with disciplinary action.
Those guidelines arrived last week with an additional direction for employees at the corporation. Alongside this new social media policy, the BBC issued guidelines that news reporters would not be allowed to attend “public demonstrations or gatherings about controversial issues”, even in a personal capacity. Some were even reportedly advised by managers that the rule covered events such as Pride marches and Black Lives Matter protests, potentially making these off limits for some.
But can an employer really reach this far into what an employee chooses to do in their free, non-working time? And is such a ban legally enforceable?
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In practice, employers are in a position to enforce almost any rule they want, says Phil Pepper, head of employment at Shakespeare Martineau. The question is whether this would stand up in a tribunal. “There’s nothing to stop organisations coming up with fanciful rules of conduct – it ultimately comes down to whether it’s unlawful or not,” he says.
As the BBC’s guidance doesn’t specify which events are prohibited, it’s unlikely to lead to claims of direct discrimination on its own, Pepper adds. But, if an employer used such a rule to prevent employees attending a particular demonstration, there’s a risk this could lead to claims of indirect discrimination. By telling employees they cannot attend Pride, for example, an employer would then be applying a rule that affected a particular group of individuals, potentially disadvantaging them by preventing them from going on a march for something they feel strongly about.
An employer could potentially mount an objective justification defence against claims of indirect discrimination – in this case the need to maintain impartiality could be sufficient to warrant some members of staff, namely reporters and newsroom staff, from attending a controversial event, says Pepper. But, it would be difficult for any organisation to meet that test for an event such as Pride that involves issues of sexual orientation – which is a protected characteristic.
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“It’s a difficult path to tread because you are infringing on an individual’s right outside of work to do something, and courts and tribunals are wary about standing on that right,” says Pepper. “There’d be a very close look and there’d have to be some very strong information and evidence shown by the BBC to support the rationale for the rule… Not only would they have to demonstrate the need for the rule, but also why they believe [an event] to be a controversial issue and why that would prevent the employee from attending.”
Such a rule could potentially be more enforceable for a Black Lives Matter protest, says Pepper, noting that some have been controversial for toppling statues and breaking coronavirus social distancing guidance. But, he adds: “Black Lives Matter involves race, another protected characteristic, [so] it very much depends on the nature of the march.”
This thinking is echoed by Trevor Bettany, partner at Charles Russell Speechlys, who also notes that, from a pragmatic standpoint, trying to enforce such a rule could be counterproductive. “The controversy which may be stirred up by disciplining or dismissing those who transgress is likely to attract media attention and, ironically, to highlight the very statement of opinion or gesture of support which the BBC is keen to avoid,” he says.
Bettany adds that it’s unclear whether these rules have contractual force or are merely guidelines. “If they are merely guidelines or, as the BBC has apparently suggested, interpretation of the rules will be left to the discretion of local managers, there is obvious scope for inconsistency, unfairness and confusion,” he says.
Philip Richardson, partner and head of employment law at Stephensons Solicitors, advises organisations need to provide clarity when issuing guidelines such as these. “Any inference that it could extend to legitimate gatherings such as Pride may offend basic human rights,” he says. “Without clear guidance, it is difficult for employees to understand where the line in the sand is drawn and what the BBC defines as something that is politically controversial and what isn’t.”
It seems unlikely the corporation would want to prevent employees attending Pride events, Richardson adds. “[Pride is] fundamentally about celebrating diversity – something surely the BBC wants to encourage,” he says.