How do you stop staff leaving your employment, with your customer database under their arm…? Some of our business clients at The Way Ahead have suffered the consequences of losing income as a result. We have helped them to write IT policies about the use of social media. So, this CIPD article is a timely reminder:
With around 11 million UK users, LinkedIn is the world’s largest professional network. It can be greatly beneficial when promoting a business, but there are a number of risks that employers need to consider when it comes to employees using social media networks at work.
The network’s membership terms state that individuals own any LinkedIn account registered in their name and should not let any third party user have access to that account or their password. Although these terms have not been tested in the courts, they do present a potential challenge to those employer policies which require employees to use a corporate account belonging to the employer, rather than their own personal account.
Many employers believe that connections made by employees and added to LinkedIn accounts during the course of their employment belong to the business and increasingly draft their social media policies on this basis. This approach can include the idea that any connections of this type should be deleted after the employee leaves the business. Again, this has not been tested in the courts and until there is clear guidance on what the procedure should be, employers should identify practical ways to deal with the risks.
They could, for example, make sure an employee’s connections are transferred to an internal database. Although this doesn’t necessarily prevent a former employee from misusing the information, it does ensure that once the employee has left, the employer has access to the connections.
When former employees do exploit LinkedIn contacts made during their employment, by trying to poach existing clients or customers, for instance, employers often try to rely on the law relating to confidential information. However, given that contact details are publically available on LinkedIn this is something the courts are unlikely to uphold.
Companies may find more success with the Copyright and Rights in Databases Regulations 1997. This legislation may enable them to argue that LinkedIn connections made by employees during their employment make up a database and, as the owner of the database, the employer’s rights would be breached if the data was used by the employee without authorisation.
In a 2012 court case, SafetyNet Security v Leonard Coppage, the High Court had to decide whether a former employee’s public announcement about getting a new job could be considered an attempt to solicit the former employer’s customers. The court found this did not amount to solicitation. This sort of announcement is frequently made by individuals via LinkedIn, which will alert many of their former employer’s contacts, perhaps even inadvertently. It seems likely, therefore, that this type of announcement would not breach traditional restrictive covenants, so it would be worthwhile for employers to tailor their restrictive covenants in order to capture conduct on LinkedIn where this may pose a risk to the business.
Employers need to bear in mind that the legal protection available at the moment when dealing with a former employee’s misuse of LinkedIn is not entirely adequate. But, while case law is developing in this area, there are steps employers can take to try to protect their business interests.
They should put in place a social media policy which makes clear that any connections made by the employee during employment belong to the employer. They should ensure that connections are recorded internally on a separate database and deleted from any accounts when an employee leaves, and should draft restrictive covenants to cover the circumstances referred to above.
Employers should also encourage employees to use corporate LinkedIn accounts, rather than personal accounts. While this has not been tested to see if it is legally enforceable, the employer could insist these accounts remain the property of the business and must be handed over when the employee leaves.
Gareth Matthews (employment law solicitor at MLP Law), 24th February, 2015