The recent media coverage of the alleged sexism of a partner in London law firm Brown Rudnick towards a barrister at Mansfield Chambers has highlighted the risks to employers of employee use of social media. In this instance the remarks which caused offence were made following two individuals ‘connecting’ on LinkedIn, the social media site which is aimed at professional networking. In a private message the partner described the barrister’s profile picture as ‘stunning’. She then published the message on Twitter and a media storm ensued.

The publicity which has brought Brown Rudnick into the public spotlight is most likely to be unwanted. But what controls can an employer have over their employees' activities on social media? Can such controls be more stringent in respect of professionally aimed sites such as LinkedIn, and whill they have less enforceability in terms of private Facebook, Twitter and Instagram accounts?

The Employment Tribunal has stopped short of forming a set of principles to be applied when facing a social media case. A number of cases have reached the Employment Tribunal in circumstances where employees have been disciplined and/or dismissed as a result of their social media activity. These activities have included; posting confidential business information, making derogatory comments about the employer, making discriminatory comments and posting information on leisure activities while on sickness absence.

In two recent decisions of the Employment Appeal Tribunal (The British Waterways Board v Smith 2015 WL 4635329 and Game Retail Limited v Mr C Laws 2014 WL 6862769) it has been established that comments on an employees’ personal Facebook and Twitter accounts can amount to a conduct issue and should be treated by the tribunals in a fact sensitive manner, applying the same legal principles as they would to any set of facts. 

This highlights the related issue of employer control – to what extent can the employer interfere with its employees’ freedom of expression on such platforms? This question has led to the increasingly popular concept of employers having a ‘social media policy’. Whether this type of ancillary policy can be understood as part of the employee’s contract is debateable, however, the presence of set rules on the issue could help prevent unwelcome surprises for the employer.

Employers considering such a policy should give consideration to the following issues (amongst others); parameters of social media use in working hours, restrictions on confidential information, whether to restrict the employee from identifying themselves as an employee of the employer, warnings that breach of the policy may have disciplinary consequences, and a reminder to use internal grievance procedures rather than resorting to public forums.

It seems that in respect of LinkedIn, employers may be able to exert a greater level of control. It is in fact common practice for some employers to control what content appears on their employees’ profiles. Further to protection of reputation, in certain businesses contacts which have been built up on LinkedIn whilst in employment can be a valuable resource for the employer and should be considered in the realm of restrictive covenants. In a recent English case Whitmar Publications Limited v Gamage & Others [2013] EWHC 1881 (Ch)an employer sought an injunction against three ex-employees, one of whom who had complete control over managing the employer’s LinkedIn groups. These groups had been set up in her personal name and she had used the email addresses of contacts following her exit. The court in this case ordered the ex-employees to hand over control of the LinkedIn groups to the employer and it ordered them not to access the pages. This is in contrast to the fact that LinkedIn’s own terms and conditions state that ownership of a LinkedIn account is personal to the account holder. It is an interesting example of a court carrying out the balancing act of LinkedIn’s own Ts&Cs and an employer’s right to its confidential information.

Whether this level of control would extend to the context of private messages on LinkedIn (which was to the detriment of the reputation of Brown Rudnick) may depend on the employer being able to demonstrate that there is a sufficiently close link between such accounts, its business and the employees’ duties.

There is clearly a complex and varied landscape of social media issues for employers to navigate. We will be delving into this further at our upcoming breakfast seminar.

We’re always happy to discuss things further.
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