Employment law is slowly catching up with modern technology but there are still some grey areas where social media and employment overlap. For example: -

Who owns LinkedIn contacts?

If you are paid by your employer to build up business connections your employer will own those connections e.g. lists of customers created by employees during their employment should belong to their employer and not be kept after employment.

The courts have applied this to electronic address books. An employee who kept all their contacts, including their personal contacts, in their employer’s e-mail system was required to hand it over when they left as those contacts belonged to their employer.

What about LinkedIn? This is yet to be tested in the courts but a recent case indicated that an employee who used his employer’s contact database to send LinkedIn connection invitations to clients and candidates had no right to keep those connections once employment ended. The employer could demand that an employee delete those contacts made via work but not personal contacts not made in connection with the employee’s employment.

The law on this remains uncertain and employers who rely upon their employees building networks should use their contracts or policies to create some clarity as to who owns what.

Can you dismiss an employee because of their Facebook status?

Potentially yes.

There have been a large number of high profile and embarrassing dismissals because of Facebook. For example:

• An Apple Store employee dismissed for posting a series of rants about his employers on Facebook lost his claim for unfair dismissal. The employment tribunal said that Apple’s social media policy banned critical remarks about the company and that Facebook posts were not truly private.
• An employee who put as her status “OMG I HATE MY JOB!!” and referred to her boss in very unflattering terms was dismissed when she forgot that she had added her boss as a friend and he read her status.
• There have been countless examples of employees being dismissed after falsely claiming to be sick. In one example an employee was dismissed after he put his status as: “Kevin is not going to work, f… it – I’m still trashed. SICKIE WOO!”

The scale of this is huge; a Freedom of information request revealed that in the Police Force at least two police officers have been sacked, seven resigned and 150 faced disciplinary action after Facebook posts in the past four years.

Can you sack an employee for uploading their CV on LinkedIn?

Generally not, employees are free to seek alternative employment in their own time without their employer interfering.

However, there is currently a case in the Reading Employment Tribunal where an employee who posted his CV on LinkedIn is bringing a claim for unfair dismissal. His employers claim that their policy is that employees should not indicate they are interested in “career opportunities” and that this employee included disparaging remarks and confidential information about the company in his CV.

Paul Whitfield comments in the Financial Times on the new trend of employer’s asking employees for their Facebook Passwords:

Read the whole piece HERE

Q: I was recently asked to hand over my Facebook password at a job interview. I thought this was outrageous but after talking to friends realise it is quite common, especially after Facebook publicised its new privacy settings. What should I so in this situation? Am I legally obliged to hand it over? Obviously I am concerned that they will get more access to my life than I’d like a prospective employer to see.

This relatively new development from the USA is spreading to the UK as an evolution of an already common practice: Recruiters conducting online research into candidates such as viewing their public profiles on social networking sites and carrying out Google searches.

As is often the case, the law is far behind technological advances. Germany already outlaws this sort of conduct. In the USA on the other hand, an attempt to create similar legislation on the issue failed in the House of Representatives on 28 March.

The world’s largest social networking platform, Facebook has now threatened to bring claims against anyone who asks for people’s private passwords.

Facebook’s Chief Privacy Officer recently issued a statement which stressed that the practice undermines the privacy expectations and security of users and their friends. The statement went on to highlight how giving your password to a potential employer would be in breach of the site’s terms of use.

You are under no circumstances obliged to hand over any of your personal passwords. However, it isn’t unlawful for a potential employer to ask for it either. In reality, and perhaps unfairly, you are probably unlikely to get the job if you refuse. I would anticipate widespread outrage at this notion but, nonetheless, there is no obvious cause of action since you always have the right to refuse such a request.

If you did hand over your password and then didn’t get the job, you might be able to bring a claim. In this scenario it is the employer who is taking a risk in accessing your account. They might discover that you are pregnant, gay or suffer from a disability: all unlawful reasons not to give you the job and could enable you to bring a claim for discrimination. It would be hard for the employer to prove that information from your personal accounts didn’t influence their decision.

Paul Whitfield is a solicitor at Fox Whitfield

Fox Whitfield, Didsbury based Law firm, opens two new offices

Paul Whitfield founded niche employment law practice, Fox Whitfield, in February 2010. Since then he has established a broad base of both employer and employee clients both locally and as far away as Kent, London, Lincolnshire and Edinburgh. What has been particularly encouraging is the huge number of those new clients that are from personal recommendations.

Fox Whitfield quickly established a strong reputation for providing practical and honest advice at a cost effective price. They seek to resolve issues by working with clients and their individual situations rather than simply advising on the legal position. As a result, many clients moved to Fox Whitfield after finding their proactive and open approach a refreshing change.

This approach has successfully resolved a wide range of matters from High Court Injunctions to compromise agreements, unfair dismissals to complex employment tribunal hearings.

With almost a hundred new clients, Fox Whitfield is undertaking a phase of growth and investment, including opening two new offices in Warrington and Lincolnshire.

Paul Whitfield explains “Rather than operating as a conventional law firm Fox Whitfield works in a modern and innovative way. Current technology means our lawyers work efficiently from satellite offices rather than being permanently based in one central office. Much of the physical infrastructure traditionally required by a law firm is no longer needed and the reduced office space and administration enables us to pass considerable savings on to clients without compromising on the quality of advice given.”

Peter Krick will lead the new Lincolnshire Office.

Peter qualified in 1985, and deals with all forms of employment law, he also deals with civil litigation matters. Peter was previously head of employment at a regional firm and as such brings a wealth of experience to Fox Whitfield.

Jill Shields is to head Fox Whitfield’s new Cheshire office, based in Warrington.

Prior to Fox Whitfield Jill ran her own Employment Law consultancy providing all aspects of employment law and HR advice. This included a monthly fixed fee employment law helpline service which will be continuing under Fox Whitfield.

Paul Whitfield is delighted to be welcoming two solicitors of such calibre. They will both be central to the continuing expansion of both the Firm’s reputation and size.

Fox Whitfield’s solicitors are always happy to speak to potential clients without charge about individual situations to see if it would be worth taking formal advice. Wherever possible we undertake work on either fixed or capped fees agreed up front so there is no surprise with unexpected costs.

Contact Paul; 0161 283 1276 paulw@foxwhitfield.com

Contact Jill; 01606 891933 jills@foxwhitfield.com

Contact Peter; 01522 702164 peterk@foxwhitfield.com

Fox Whitfield is regulated by the Solicitors Regulation Authority [Roll Number 524972]