The Impact of Social Media on Employment Law Carmel Sunley Sunley Solicitors Limited

Contents Use of Social Media in Recruitment Misuse of Social Media by Employees Policy Considerations Post Employment Use of Social Media Managing the Risk Practical Steps

Use of Social Media in Recruitment Using Facebook; LinkedIn and other social media as part of the recruitment process Pre-employment discrimination – S. 39(1) Equality Act 2010: An employer (A) must not discriminate against a person (B) (a) in the arrangements A makes for deciding whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment

Data Protection 2013 Information Commissioner Employment Practices Code Is it necessary or proportionate to do this? Inform candidates of the checks it is proposed to undertake Give candidates the opportunity to comment on the data gathered Late stage in recruitment process when potential candidate identified, not all candidates

Misuse of Social Media by Employees Crisp v. Apple – ET September 2011 Apple shop employee. Critical remarks made about Apple products on Facebook Privacy settings – posting to “Friends” only Employer informed Dismissal Held: Fair dismissal, there was an induction programme during which it was made very clear to the employee that reputation was very important to Apple and restricting freedom of expression was a legitimate means of protecting Apple’s reputation.

Taylor v. Somerfield Stores Ltd Case No. S/107487/07 20 second clip on YouTube showing a person in uniform being hit with a plastic bag. Dismissal Held: unfair dismissal. Dismissing manager did not view the clip or know that it had only 8 hits, 3 of which were from management investigating. Dismissal was disproportionate to the action.

Policy Considerations Need a clear and communicated Policy ACAS guidance on formulation of Policy Consultation Acceptable use of social media at work – guidance for use at work Blocking social media access on work computers will still leave smart phone access – policy guidance needed Acceptable or reasonable use, lunch times, breaks or reasonable access Health & Safety issues for excessive screen use

Linking social media use to existing discrimination, harassment and whistle blowing policies Disciplinary sanctions made clear for social media misuse Social media use in relation to reputational harm and in relation to workplace issues controlled both in and outside the workplace Not using work position in social media postings – “My own views…” There should be an express prohibition on posting confidential information of the employer or personal data of fellow employees

Post employment use of Social Media LinkedIn Who owns the account Who owns the contents and connections Do trade connections cease to be confidential simply because they are posted publicly on the site? Do changes to an employee’s profile amount to solicitation in breach of post-termination restraints and, if so, how can you protect your business interests when an employee leaves?

Hays Specialist Recruitment v. Ions (High Court) Hays did not directly concern contacts created in the course of work It was a pre action disclosure application in which it was alleged that a former employer had deliberately loaded up to LinkedIn contacts from a confidential work data base whilst still an employee Held: Mr Ion’s submission that the contacts were no longer confidential as they had been posted online did not find favour with the High Court who ordered pre action disclosure; But pre action disclosure was limited to s and other communications sent to or received by Mr Ion’s LinkedIn account from Hay’s computer network; and all documents evidencing the use made and business obtained by the respondents from business contacts uploaded by Mr Ions to LinkedIn while he was employed by Hays.

Whitmar Publication Ltd v. Garnage and others (2013) The employer’s LinkedIn accounts had been created and managed by employees in the course of their employment Employee left and started a rival business and used LinkedIn contacts to do business Employer didn’t know the password to the LinkedIn account Held: at an interim hearing the Court ordered the delivery up of the password to the LinkedIn account. The Court did not specifically consider the ownership of the LinkedIn connections issues The case settled before a full trial

Managing the Risk Change of employer/new business in profile of ex- employee conveyed directly to all connections Issues of solicitation: does the mere change of status or announcement of the change of employer amount to solicitation? Implicit solicitation of custom but probably no solicitation unless targeted Post termination restraint clauses should directly engage with social media Language of “solicitation” is perhaps out-dated and better to use clear language like “you wont change your LinkedIn status to say you are working for the new company for a period of 6 months”.

Practical Steps Provide clear guidance to the employee on the use of the account in a Policy setting out the employer’s expectations on appropriate content Communicate the Policy Require employees to replicate contacts on the employer’s own database Take steps to set up the employee’s LinkedIn account (eg by using the Company’s address, photo and text and generating a password that is surrendered on termination) and maintain the account using the employer’s systems Include an express duty to promote the employer’s business in your Policy and stipulate that the employee is to develop connections in furtherance of employer’s interests

Add a clause into the employment contract assigning to the employer any proprietary interest in professional contacts added to an employee’s LinkedIn account during the course of employment Include in the contract of employment non dealing clauses as well as non solicitation clauses Garden leave – consider imposing a ban on updating LinkedIn account during garden leave Consider imposing contractual provisions that require disclosure or deletion of all connections belonging to the employer on termination of employment or even requiring the employee’s LinkedIn account to be closed down altogether!

Carmel Sunley Solicitor and Accredited Mediator Sunley Solicitors Limited