The shifting sands of social media and the law

With social media increasingly pervading our lives, Jonathan Exten-Wright looks at some of the legal challenges.

LinkedIn is the largest professional networking website and has captured the imaginations of employers and employees alike, with around one million new users joining every week. Its huge success is having a significant impact on today’s workforces, with the site becoming a beacon for marketing initiatives, internal communications and recruitment.

Box 1: Social media policies

  • Send a clear signal about company expectations for employee use of LinkedIn or other social media sites by adopting a social media policy that specifically covers the site.
  • Train employees on the content of the social media policy and on effective and compliant use of social media, including LinkedIn.
  • Educate employees about the consequences of disclosing or misusing the company’s confidential information or intellectual property on LinkedIn or other social media sites.
  • Train management on appropriate and effective employee monitoring and on complying with employees’ privacy rights.
  • Require employees to confirm in writing that they have received, read and understood a copy of the company’s social media policy.

However, its popularity presents a number of legal issues for employers. The site potentially puts business secrets and trade contacts at risk. Further, it could expose employers to legal liabilities if the site is misused, either inadvertently or deliberately, by the business or by its employees.

A tribunal decision in the case of Flexman v BG Group plc in November this year illustrates the risks of mishandling concerns about employees’ use of LinkedIn.

John Flexman made headline news earlier this year when he was subjected to a disciplinary hearing after posting CV information on LinkedIn. Flexman successfully claimed constructive dismissal in the employment tribunal.

The tribunal concluded that the way Mr Flexman’s disciplinary and grievance proceedings had been handled amounted to a breach of the employer’s obligation of trust and confidence. Mr Flexman had resigned as a direct result of the loss of trust and confidence in the employer to deal with the disciplinary and grievance proceedings.

A research study carried out by law firm DLA Piper in 2011 reveals that 76% of medium to large employers have some form of corporate social media presence, with 79% of these businesses engaging with LinkedIn. Some 80% of respondents use social media for brand awareness, demonstrating the enthusiasm with which businesses are capitalising on the ease and speed that the sites allow access to customers and potential customers.

The survey revealed that 42% of respondents use social media for recruitment and a further 44% are planning to do so in the future. In the recruitment arena, LinkedIn offers a number of attractive features, suggesting that this trend is likely to continue to develop.

New kind of job search

Employers and recruitment agencies are able to search for potential candidates through LinkedIn’s search engine. They are then able to potentially view not only an individual’s expertise and skills, but also any recommendations they may have. LinkedIn recommendations are references one site user has given to another on the basis of their working relationship. Those making recommendations need to be sure they are authorised to do so and that the content is accurate, otherwise a disappointed employer could argue they had relied on a misrepresentation and sue accordingly. Individuals can also say on their profile page whether or not they are amenable to being contacted about career opportunities.

But there is a flip-side to the benefits LinkedIn presents to recruiting employers. Employers must not use the site to discriminate against potential applicants and must ensure they are not intruding into individuals’ private lives, breaching data security or interfering with privacy rights.

One particularly contentious area is around log-in details. In recent months, US businesses have been making headlines by requiring job applicants to disclose Facebook login details so that they can collect candidate information from the site before making a recruitment decision. Although there do not yet appear to be any reports of this extending to LinkedIn, it would be unwise for UK employers to engage with this practice unless they wish to become entangled in a legal minefield.

DLA Piper’s research shows that only 44% of employers include guidelines on the use of social media in recruitment policies, suggesting that many businesses need to give more thought to the potential risks involved. Employers must also remember that LinkedIn’s recruitment benefits are a double-edged sword. While they facilitate recruitment of new employees, they also enable existing employees to advertise skills and experience to potential new employers – including competitors.

Employers must ensure they make their rules and regulations very clear to employees, particularly in light of recent case law that demonstrates the importance of policies and procedures if employers wish to be able to take effective action against employees in respect of social media misuse (see box 2).

Keeping in contact

LinkedIn’s capacity to store professional contacts in the form of “connections” also presents employers with challenges in respect of employees who leave the business. Ownership of these contacts and an employer’s ability to restrict an employee from exploiting them in the future is a legal grey area. Case law will hopefully develop to clarify this, but in the meantime employers would be well advised to make their position clear to employees as to what is proprietary information.

Information posted on a LinkedIn profile page may also inform key business contacts such as customers that an individual has moved on, and as a result instigate business for the employee at his or her new employer. While individuals may be subject to contractual restraints on their post-termination activities, the impact of these restraints on posting information on a LinkedIn profile page has yet to be tested in the courts. Employers, therefore, need to carefully consider how to minimise the impact of these features on their business.

A multi-strand approach is likely to be necessary, which could include contractual provisions regulating an employee’s social media behaviour both during and post-termination of employment.

Employers must embrace the social media challenges head on. The biggest hurdle is likely to be striking the delicate balance between controlling the way social media is used, both by the business and its employees, while maximising its potential as a business tool.

Jonathan Extan-Wright is a partner at law firm DLA Piper LLP

Box 2: Case focus

  • Lerwill v Aston Villa Football Club
    Aston Villa was found to have unfairly dismissed an employee who published inappropriate comments on an unofficial fan forum website. The football club did not have any policies or procedures to put the employee on notice suggesting that comments on a public message board could result in disciplinary proceedings and dismissal.
  • Preece v JD Wetherspoons plc
    The company’s clear internet policy was crucial to the employment tribunal finding that the dismissal of an employee who published inappropriate information about a work incident on Facebook was fair.
  • Stephens v Halfords plc
    Prompt action by an employee in removing Facebook material as soon as he became aware of Halfords’ policy on social networking sites meant that his subsequent dismissal was found to be unfair.
  • Flexman v BG Group plc
    A poorly handled disciplinary action against an employee for allegedly posting confidential information about company losses on his LinkedIn profile led to a finding of constructive dismissal.

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