Social media in the dock

We recently saw the first Employment Tribunal case concerning the alleged constructive unfair dismissal of an executive following a social media networking dispute.

John Flexman had posted his CV on professional networking site, LinkedIn, and ticked the box to register an interest in ‘career opportunities’. In his CV he detailed comments about his employer, BG Group, which were allegedly “negative towards the company”. BG Group started disciplinary action, following which Mr Flexman resigned.

For some, time employment experts have been warning of the problems that can arise through the use of social media in the workplace. In 2006, when the phenomenon was first emerging, the Trades Union Congress described Facebook’s 3.5 million users as “HR accidents waiting to happen”.

From an employer’s perspective, the key risks of their employees using social media relate to:

• Productivity: If every employee in a 50-strong workforce spent 30 minutes on a social networking site every day, that would work out at a loss of 6,500 hours of productivity per year.

• Discrimination: anti-discrimination laws can hold employers “vicariously” liable for discrimination by their employees.

• Reputation: comments made by employees on networking sites that are defamatory or negative towards their employer can damage its reputation.

• Confidentiality: employers are also exposed to the danger that employees may post confidential information online. Furthermore, if an employee uses LinkedIn after employment to contact clients or suppliers, does that breach post-termination restrictions aimed at non-solicitation?

Possible solutions include blocking or imposing an outright ban on any access to social networking sites at work, but this does not cure the problem of “out of hours” activity and it is likely to be unpopular with staff.

Employers also cannot ignore the potential benefits of social media to their business, including marketing opportunities and making new contacts, so it is important to strike a balance.

The key is communicating to staff what is and what is not acceptable. Introduce a social media policy to set clear parameters about permitted use, including rules about accessing social media sites at work; information about what monitoring may be undertaken; and a reminder to employees that they must not disclose confidential information or trade secrets or make derogatory or discriminatory comments.

Stacey Barlow
Solicitor, Napthens