Social media shows no signs of going out of fashion. By now the business community is well versed in the commercial advantages of social networking; sites such as Twitter, Facebook and LinkedIn offer exciting and innovative ways for businesses to thrive. With over 200 million users, LinkedIn claim to be adding 2 new members per second; this speed of change raises a number of issues for employers, for example:
- Business Protection
- The ownership of data created during the course of work on sites such as LinkedIn
- Restrictive Covenants and social networking solicitation.
previous article Dougherty Quinn ("DQ") highlighted
the need for businesses to incorporate a well drafted social media
policy into company staff handbooks; 18 months later we stand by
this advice. The IOM Employment Tribunal has still not had an
opportunity to directly consider the impact of social media;
however there have been a number of decisions of the English
Employment Tribunals and some threads can be drawn from these
cases. One example in particular highlights this point aptly: Crisp
v Apple Retail (September 2011).
Mr Crisp was an Apple shop employee who made some critical remarks about an Apple product on Facebook to a friend. Apple's employee induction and policies embraced an emphasis on company image and placed obligations upon employees in the use of social media even in interactions of a personal nature. The prospect of disciplinary sanctions was made very clear. The employer was informed about the postings and, despite removing the post, Mr Crisp was dismissed for gross misconduct. He brought a claim before the Tribunal for unfair dismissal. In assessing whether Mr Crisp had been unfairly dismissed the Tribunal considered the impact of the Human Rights Act. It held that the right to freedom of expression was engaged, however, against the background of the employer's clearly communicated policy designed to protect its reputation, the restrictions placed on this fundamental right were proportionate.
Lesson number 1: Social Media Policy
It is clear from the case law that businesses need to now have in operation a communicated social media policy which sets clear parameters about permitted use both inside and outside of the business. As a minimum such a policy should consider:
- Use at Work – it may be possible to expand your company email and internet policy to reflect social media use both inside and outside the workplace, the use of smart phones, the role of social media in the company's business strategy, etc.
- Reputation – link the social media policy to the company rules of conduct and/or disciplinary policy
- Harassment, discrimination and bullying – there should be a direct link to these policies making it clear that the conduct is unacceptable in virtual as in non-virtual settings
- Disciplinary consequences attaching to any policy breach.
LinkedIn – whose connections are they anyway?
Employees owe a duty of fidelity to their employer; to copy a client list would be a breach of this duty. This is well established law. The area becomes somewhat 'grey' when you consider contacts created or stored on LinkedIn or Facebook; the rights in those databases belong to neither the employee nor the employer. There is little litigation in this area but the question remains: what can employers do to protect client lists and valuable connections? The answer may lie in the use of (carefully drafted) post termination restraints and/or the use of compromise agreements with specific provisions (for example) setting out what may or may not be said in social media about the employee's departure and thus acting as a retrospective non-solicitation provision. What is certain is that this jurisprudence will continue to evolve as 'Generation Y' starts to change employment, begging the question: is your business ready?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.