Social Media Networks And Employment Law

The ever growing and changing use of social media creates a number of issues for both employees and employers. Because it evolves so quickly the law is not designed to deal with it and there is still little case law which sets out clear rules or principles.

The main risks that employers need to consider are:

1.  Brand Damaging Comments

There is the risk of employees posting confidential information or comments that are damaging to their employer’s reputation or brand.  It is important that employers have these issues covered in their contracts of employment or handbooks to make it clear what is and what is not acceptable to publish in social media. There have been several cases where employees have been dismissed for comments about their employer on Facebook or other social media sites. One of the things a Tribunal will always want to see is the employer’s rules or policy and if that has been applied consistently. 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 risk of damage and the privacy settings the employee has and/or the number of “hits” or “likes” etc. are also all factors that can be taken into account. Two supermarket employees who posted a video on YouTube of them hitting each other with plastic bags were found to have been unfairly dismissed when it came to light the video had hardly been seen by anyone and the content was not in itself damaging to the supermarket.

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.

2.  Discriminatory Comments

Employers can be found to be “vicariously” liable for discriminatory comments made by their  by their employees.  If an employee made comments on social media about another employee online that amount to discriminatory harassment there is risk of the employer being liable. This can be the case even if the employee making the comments is not even using their employer’s IT equipment to do so.

An employer needs to be able to show that it has taken all reasonably practicable steps to prevent the harassment from not taking place to be able to defend itself. Employers can try and argue that the employee was not acting “in the course of employment”, but tribunals have applied the concept of what is in the course of employment very widely in the past.  Events that take place away from the work place can still be found to be  in the course of employment  in some cases.  The most effective defence is to have policies and training in place which make it clear that online comments and behaviour, even outside the workplace and work time must not breach appropriate standards.

3.  Confidential Information and Client Lists

An employer’s customer list belongs to the employer and it is unlawful for an employee to copy that list and take it with them to a new employer.

The High Court has also stated that in a case where an employee who created and kept all his contacts on his employer’s computer system, that database of contacts belonged to the employer and not the employee. This even applied to his personal contacts which he thought of as his long term contacts.

LinkedIn and other networking sites create problems for employers because there is a large grey area about who owns that database and can control those connections. There have been two cases in this so far.

Hays Specialist Recruitment (Holdings) Limited and Another v Ions and Another:

The High Court ordered an ex-employee to disclose his LinkedIn account contents to his ex-employer. The ex-employer alleged that the employee had deliberately migrated details of business contacts from a confidential database to his personal LinkedIn account to invite the contacts to join his network. This was only an interim hearing but it shows that the High  Court accepts that LinkedIn accounts can be used unlawfully by employees to harvest client lists from their employer’s database.

Whitmar Publications Ltd v Gamage

Three employees set up a competing business during their employment with  Whitmar Publications. The ex-employees were accused of a long list of unlawful acts such as trying to poach and using confidential information.

One of the ex-employees had managed four LinkedIn groups on behalf of Whitmar. Those  groups appeared to have been used after that employees employment ended as the source of email addresses for the new competing business. The Employee also refused to provide Whitmar with the user name, password or any other access details for the groups.

The High Court also found that this employee’s duties as an employee included responsibility for dealing with the LinkedIn accounts, which were operated for Whitmar’s benefit to promote its business. The Judge 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 groups. This was despite the fact that LinkedIn’s terms state that ownership of a LinkedIn account is personal to the account holder

These case only scratch the surface of the many unanswered questions posed by employees’ use of LinkedIn and other social media sites. If an employee uses a personal LinkedIn account for both personal and business use, or if an employee starts a new role with an existing LinkedIn accounts or groups already in place then the position remain unclear. The key question for the Court in this case was if the account was operated for the benefit of the new employer.

Employers who are worried about this should put in place policies that set out who owns business contacts on social media made by employees during their employment. Some employers require their employees to set up a separate LinkedIn account for all business activities and have a clear contractual requirement they delete any of the employer’s business contacts from a personal account when their employment ends.

Employers should also consider if it is appropriate to also have contractual provisions (Restrictive Covenants) that seek to prevent employees from dealing with or soliciting business from the employer’s customers after their employment ends.

4.  Loss of productivity

Employers are often very worried that the use of social media during work time can lead to reduced productivity.

If the employer allows access to social media sites though their IT system during working hours they need to very clear about the level of acceptable use. There is also now the issue that any employee with a smart phone is likely to have full access to social media without making any use of their employer’s IT systems.

There have been cases in the Employment Tribunal where employees dismissed for “excessive internet use” were found to be unfair because the employer’s rules about when employees could access the internet at work were unclear.

Many employers these days accept that it is very hard to stop employees using social media during working hours and so have policies that social media can be used during working hours so long as it does not interfere with the employees work. They should also have clear rules as to what is acceptable use.

Social Media Policy: An Outline Of What Should Be Included

• Rules about not making discriminatory or offence comments about the employer, other employees, customers etc.

• Limits on employees access social media at work.

• Details about the fact the employer may monitor employees internet use.

• Clear rules that employees must not disclose confidential information or trade secrets via social media.

• A requirement that employees use a disclaimer if they blog or tweet etc. to state that their views are not representative of the employer but are personal.

• Rules about the ownership of business contacts created during employment on sites such as LinkedIn.

Fox Whitfield have acted in a number of cases where these issues were considered and can provide expert advice to business in creating bespoke policies to protect your business.