Who owns your LinkedIn contacts? Is it you or the business you work for? And can you be sacked for using LinkedIn to look for job opportunities?
Senior HR professional John Flexman uploaded his CV onto LinkedIn and ticked the box which stated he was interested in other career opportunities. On the face of it, there may not appear to be much wrong with that. However, his employer BG Group took a different view.
His bosses asked him to remove his CV and invited to a disciplinary hearing for ‘inappropriate use of social media’. Although this may seem harsh on Mr Flexman, it appears that there was also information on the CV which portrayed BG Group in a bad light, suggesting that there were bad practices within the company. According to BG Group, his actions were in breach of its policies which precluded him from ticking the ‘career opportunities’ box on LinkedIn.As a result of the dispute, Mr Flexman resigned and issued a claim of constructive unfair dismissal; essentially claiming that he was forced to leave his job as a result of the actions of the company. This is thought to be the first case of its kind involving an employee resigning over the use of a LinkedIn account.
The tribunal held that Mr Flexman had been unfairly dismissed as BG Group was guilty of a ‘serious breach of contract’. The tribunal said this was due to their unacceptable delay in dealing with the disciplinary case and their failure to address a grievance raised by Mr Flexman.
What many were hoping to see as a result of this case but didn’t, was whether the employer had been right in the first instance to commence disciplinary action over the uploading of the CV and the information contained therein. We may have to wait until another court case to get the answer.
As LinkedIn has passed the 100 million users milestone, another issue to think about is contact lists. In a recent High Court decision, it was ordered that a former employee of Hays Specialist Recruitment had to disclose his LinkedIn contact list. Hays suspected he had taken contacts belonging to the company and copied them to his LinkedIn account.
However, the interesting point to note from this decision was the fact that the Court decided that the list of LinkedIn contacts actually belonged to the employee and NOT Hays, despite the information being gathered during the course of his employment (which is the usual legal test when considering who owns work that is created in the course of an employee’s employment).
Whilst these are interesting issues to debate, what can employers actually do about the problems associated with social media?
Many employers will not have considered what will happen to an employee’s list of contacts on termination of employment. Historically, employers have relied on post-termination restrictions in tightly drafted employment contracts to ensure this valuable information goes no further. However, now that professional social networking allows employees to create their own personal list of business contacts, employers should ensure that their contracts and policies deal with these tricky situations. The best way to do this is to ensure that there is a coherent social media policy, dealing with issues like inappropriate use, ownership of contact lists and obligations as regards confidential information.
Fisher Solicitors www.fisherslaw.co.uk
01530 412 167