Social media in the workplace: what's your policy?

Despite the fact that the majority of people have social media accounts these days, it is surprising how few businesses have in place a policy governing their use.

By Karen Credie, KMCHR.

The main areas of concern for employers are damage to the company’s brand if inappropriate comments or photos are posted, bullying / harassment and the potential to be found vicariously liable for employees’ actions in this regard, discrimination of any kind, and breaches of security / confidentiality.

One instance where the latter of these risks came to the fore was the case of Whitmar Publications Ltd v Gamage and others. The case involved three senior employees who resigned from the publication company to set up their own rival business. Although resigning from their roles in January 2013, it transpired that the three employees had actually set up their new company, Earth Island, in the previous August and since this time had been using LinkedIn groups managed on behalf of Whitmar to try and promote it.

One of the means of doing this was through LinkedIn groups – set up by one of the employees to promote Whitmar’s services via their personal LinkedIn account. Whitmar argued that these contacts were the company’s property as they were appropriated ‘on their clock’ and so they took out an injunction against the former employees. The High Court upheld this injunction and forced one of the employees to hand over the login details to their LinkedIn account to Whitmar; giving them ownership of that account. This was irrespective of the account being set up in the employees own name and including contacts that were personal to them.

The blurred line between what is and what is not property of the company in terms of contacts on social media presents an interesting and highly debated topic. Having a social media policy in place certainly helps to clarify the position and any such policy should stipulate the ownership of any corporate social media accounts and / or the contacts they contain.

Employers need to consider the risk to their business should an employee want to leave and try to misappropriate social media contacts built up during the course of their employment. In addition to a suitable and detailed social media policy, the use of restrictive covenants in the employment contracts of senior level employees should also be considered. If you have had an issue relating to social media use in the workplace, please do not hesitate to contact us for confidential HR advice.