Tag Archive: social media

Keeping pace with social media in the workplace

Kate Hodgkiss, a Partner in our Edinburgh office, comments: In recent years, the social media phenomenon has continued apace and there is no doubt that it is now an integral part of a significant proportion of businesses in the UK. It has a key role to play in marketing, communicating, training and sharing of ideas and is a hugely successful means of facilitating and delivering these key aspects of modern business. It is also, of course, of huge interest to employees who have increasingly engaged in recent years in sites such as LinkedIn, Facebook and Twitter as well as a plethora of other social media platforms. However, employee use can, and often does, stray outside the purely personal – and that is, unfortunately, where, for employers, problems may lie. Whilst social media’s flexibility, informality and potential to reach an enormous audience is part of its appeal, at the same time it makes controlling and monitoring information an increasingly difficult challenge for employers.

A number of cases have reached the employment tribunal in circumstances where employees have been disciplined and/or dismissed as a result of their social media activity. These activities have ranged from posting sensitive business information, to making derisory comments about the employer; from posting information on leisure activities while on sick leave, to making potentially discriminatory comments.

Tribunals have been cautiously wading their way through the social media quagmire to try and determine what is, and is not, acceptable conduct for employees, and what mechanisms employers need to have in place to effectively protect their business and to fairly discipline their employees. However, until now, there has been no binding authority on the issue.

The EAT has, however, now ruled on its first social media case. In Game Retail Limited v Laws, a senior manager with responsibility for 100 stores was dismissed for posting offensive comments on a personal Twitter account in his own time.  The  Twitter account was followed, however, by 65 of his stores and the comments were reported by another manager who had seen the tweets. The employment tribunal found that the dismissal was unfair on the basis that it did not fall within the band of reasonable responses open to the employer. Key factors relied on by the tribunal were that the employee had not opened the Twitter account for work purposes and the tweets were made in his own time and on his own mobile phone; the tweets were not work related and did not refer to his employer in any way; the employee had explanations for some of the offensive comments; and no member of the public or the employer’s other staff had access to the employee’s Twitter feed.  The tribunal also found that the employer’s disciplinary policy did not have an express clause demonstrating to staff that offensive or inappropriate use of social media in private time could be treated as gross misconduct.

The EAT, however, found that the employment tribunal’s decision was perverse and that the tribunal had fallen into the ‘substitution trap’ of forming its own view on the issues, rather than determining what view a reasonable employer may have formed. The EAT said that there has to be a balance drawn between an employer’s desire to remove or reduce reputational risk, and the employee’s right of freedom of expression. Here, the employee had not made use of the privacy settings on his Twitter account, nor created two separate accounts for personal and work use. His tweets were also accessible by all 65 stores who were following him, as well as by any customers who picked up on the employee’s account. The EAT said that the issue is not restricted to whether the material is derogatory of the employer but whether it is, because of its nature, offensive, and might be going to the employer’s staff and customers.  The EAT therefore remitted the case back to a fresh tribunal to consider the matter further.

The EAT expressly declined to issue guidance on social media in the workplace. It said that the test is whether the employer’s decision and the process in reaching that decision is within the band of reasonable response open to an employer on the particular facts. It said that the questions which arise will always be fact-sensitive.

Whilst it is a shame the EAT has not issued any explicit guidance, its reasons for doing so are perhaps understandable.  Its findings simply serve to emphasise the importance of employers engaging with social media risks and tailoring policies and procedures to meet the needs of their particular business. Training staff and managers on the provisions is also essential and the terms should be consistently enforced. Key factors to consider in creating a social media policy will include:

  • Appropriate definitions
  • Parameters of social media use in work time and on work equipment
  • Prohibition on harassment, bullying or discriminatory conduct
  • Restrictions on disclosure of business sensitive or other confidential information
  • Restrictions on identification of individual as an employee of the employer
  • Application of privacy settings
  • How social media activity will be monitored
  • Warnings on consequences of breach of the social media policy and that serious breaches may lead to summary dismissal
  • Reminder to use grievance procedure for raising work-related complaints or concerns 

Permanent link to this article: http://www.dlapiperbeaware.co.uk/keeping-pace-with-social-media-in-the-workplace/

LinkedIn: Protecting confidential information

Lisa Hodgson, an Associate in our Birmingham office, comments: Social media is becoming an increasingly common business tool as it is easy to use, free and effective.  Many of our clients, particularly in professional services industries, encourage the use of LinkedIn as a forum for marketing. If you meet someone at a networking event you are now just as likely to add them on LinkedIn as you are to swap business cards.

LinkedIn has seen exponential growth over recent years.  It now boasts of having over 259 million members in over 200 countries and gets two new members per second.  In the UK alone there are 13 million members.  Over the past few years we have started to see a slow trickle of employment tribunal decisions relating to the use of social media, but these have tended to concern the use of Facebook rather than LinkedIn.

A recent trend we are seeing is that when employees leave employment there can be a dispute about who owns their LinkedIn contacts, particularly where they are setting up in competition with their former employer and are likely to use the contacts in their new employment. Given the growth in popularity of LinkedIn, employers are quickly realising that a departing employee’s LinkedIn contacts are just as valuable to the employee as the company’s own database of contacts. There are very few cases regarding the ownership of LinkedIn contacts made during the course of employment and we expect this to be a growth area in coming years.

In Hays Specialist Recruitment Holdings Limited -v- Ions, Mr Ions worked for Hays as a recruitment consultant. Before he left to set up a competing business he sent LinkedIn invites to some of Hays’ clients and candidates. Hays applied to court for pre-action disclosure of certain documents, so that it could assess the extent of Mr Ions’ wrongdoing and the merit of bringing a claim against him. Ultimately, the court took the view that contact details obtained during the course of employment will remain the property of the employer, even after they were added to LinkedIn, and it therefore granted the disclosure sought.

The recent case of Whitmar Publications Limited v Gamage & Others concerned the use and ownership of LinkedIn accounts and groups.  Around four months before they resigned from their employment with Whitmar Publications Limited, three employees set up a competing business called Earth Island.  When Whitmar discovered this after the employees had left, it brought proceedings against the employees seeking an interim injunction to restrain the use of its confidential information.  One of the ex-employees, Ms Wright, had managed four LinkedIn groups on behalf of Whitmar.  In court she claimed that the groups were personal to her and “just a hobby”, although it was established that she had no home computer.  Three days after leaving employment with Whitmar Ms Wright used the LinkedIn groups as the source of email addresses for an Earth Island email inviting contacts to an informal event.  Ms Wright refused to provide Whitmar with the user name, password or any other access details for the groups.

In delivering its judgment, the court required the ex-employees to give Whitmar exclusive access, management and control of the LinkedIn groups.  It also ordered them not to access or do anything that would inhibit or prevent Whitmar from accessing the LinkedIn group.  This was despite the fact that LinkedIn’s own terms state that ownership of a LinkedIn account is personal to the account holder.  This is the first example we have seen of a court having to weigh up the conflict between LinkedIn’s own terms of use and an employer’s right to its confidential information.

There are many unanswered questions surrounding employees’ use of LinkedIn and we expect that it will be many years until the position is clear as cases are rare.  For a business to have rights over employees’ LinkedIn or other social media accounts, it will undoubtedly need to be in a position to demonstrate that there is a sufficiently close link between such accounts, its business and the employees’ duties. 

To manage risks employers may want to consider taking the following practical steps:

  • in any social networking policy include guidance on the appropriate use of LinkedIn accounts, emphasising that use of such accounts is part of an employees’ role and responsibilities, that the accounts belong to the company, and providing steps for the release of login details on termination; 
  • the company should involve itself in the creation of employees’ accounts (for example, by requiring the employee to use the company’s email address for log in purposes and branding on their profile) and require that the employee maintains the account using the employers’ systems;
  • the employer should specify, either in the employment contract or policy, that any contacts made through social media should be added to the company’s central systems;
  • include provisions in the employment contract assigning any proprietary interest in contacts, added to an employees’ LinkedIn account during the course of employment, to the employer;
  • tailoring restrictive covenants to specifically provide for restrictions in the use of social media;
  • expressly stating in a garden leave clause that the employee is not permitted to access or update their LinkedIn account during garden leave;
  • in contracts, provide for the disclosure or deletion of all LinkedIn contacts belonging to the employer on termination of employment or the closure of the account;
  • where exits are negotiated, include provisions in any settlement agreement requiring the employee to surrender his or her social media account as a condition of payment of any settlement compensation.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/linkedin-protecting-confidential-information/