Social networking: who owns what?
Many employees currently use social media to develop business contacts. But how should employers manage this use of social media? Who does the social media belong to when it specifically mentions the employer's name and what the employee does? LinkedIn for example, is largely used by employees in this way. Employers that encourage their employees to use social media should have a social media policy. It needs to be clear and set out what the employer accepts is legitimate use and what is not, whether such use is permitted during working hours, and the prohibition of disclosing confidential information.
Employees frequently use Facebook to discuss incidents and colleagues at work. Without a social media policy, employers may find that they cannot discipline for misuse. In a recent case, a pub chain's employee made negative comments about a customer on Facebook. The lack of privacy settings meant that customers, colleagues and others could view the comments which potentially lowered the reputation of the company. The pub chain did have a social media policy and was able to dismiss the employee via its disciplinary policy and the dismissal was found to be fair.
However, a simple breach of the social media policy will not always be a dismissal offence. Employers are advised to consider the gravity of the comments before deciding on the level of sanction.
Employers often wonder how far they can go to monitor their employees' social media activities. The answer is transparency. Employers should make it clear that employees' use of work IT systems is monitored. Employees who put postings on the web are effectively publishing to the world and abandon their right to privacy. Employers are therefore entitled to use their disciplinary policy. When Apple dismissed one of its employees who made derogatory comments in relation to its products, it was found to be fair. Apple's policies are clear that its image is vigorously defended.
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There is an additional risk. Where derogatory comments cause damage to a third party, it is possible that the company would be held liable for damage occurring to a third party and this is so even if the postings are made outside of work time. A clear policy will specify permitted levels of access and personal use; that negative comments about customers and others are prohibited; that breaches such as disclosure of confidential information or trade secrets may amount to gross misconduct; that employees making comments on their own behalf are not making comments on behalf of the company.
When an employee leaves an employer, is he permitted to take his LinkedIn business contacts with him and seek to get business from them? Although LinkedIn has terms and conditions which state that the account remains the property of an individual, courts often disregard this when confidential information has been disclosed. In a recent case involving a recruitment company, contact details obtained during the course of employment were found by a court to be the property of the employer and as such can be protected with an injunction.
Finally, it is essential these days to tighten up contracts of employment and the handbook in relation to databases, business contacts, and restrictions in relation to soliciting customers upon termination of employment. However: restrictions of employees need to be reasonable and must protect a legitimate business interest.
Reasonableness is judged on the seniority of employees, their role and location, and business practices in their industry. Where employers have concerns about the use of social media by their employees, they should investigate the use thoroughly, preserve as much evidence as they can, and seek legal advice in relation to the evidence they have collated.
Terry Falcão is a partner and head of the employment team at leading South West legal firm Stephens Scown LLP. His expertise has been recognised by independent legal guide Chambers which has named him as one of their 'leading individuals' for 2014. He can be contacted by telephoning 01392 210700 or emailing firstname.lastname@example.org