The benefits of the social media tool, LinkedIn, to grow contacts and enhance business are now well-known. However, a business that encourages its staff to proactively use social media to strengthen client contacts should also be alive to the risks posed when an employee decides to leave and set up in competition.
In a case earlier this year, a Birmingham recruitment agency was successful in obtaining injunctions against three ex-employees to prevent them from continuing to use their company LinkedIn accounts after their employment had ended. The accounts had been used on a day-to-day basis to contact clients and the employees had signed undertakings acknowledging that the LinkedIn profiles (and contacts) belonged to their employer.
The decision is unsurprising given the threat that may be posed by the continued use of company LinkedIn accounts after employment has ended. As far back as 2008, a judge ordered pre-action disclosure of certain documents to evidence whether an employee had used LinkedIn to copy and retain client details (Hays Specialist Recruitment (Holdings) Limited v Ions 2008).
More recently, in Whitmar Publications Limited v Gamage and others 2013, Whitmar (a publications company) obtained an injunction against ex-employees, who had set up a competing company, to restrain them from using and disclosing confidential information obtained during their employment with Whitmar. This information comprised contact details from members of LinkedIn groups maintained by Whitmar. Whitmar alleged that Mr Gamage had attempted to use the LinkedIn groups maintained by Whitmar to further the interests of his new venture. The court also ordered a limited forensic inspection of Mr Gamage and his colleagues’ computer systems to identify their activities.
It is clear from the recent case law that organisations have a better chance of protecting confidential information if the company’s LinkedIn accounts are clearly branded as such and it is made clear that the information available through the LinkedIn accounts is company property.
Other practical steps which you can seek to take are:
- ensuring that company contacts are saved only to LinkedIn accounts which bear your organisation’s email address and logo
- making sure that the details on the LinkedIn accounts show that this is a company and not an individual account
- including wording in your staff handbook that the company LinkedIn accounts are for company use only and that any misuse during employment (e.g. extracting client details for competitive activities post-employment) is a disciplinary offence which may in certain cases be treated as gross misconduct
- securing an undertaking from the individual that the accounts will be used for company purposes only and not for personal use
- clarifying the definition of confidential information in the individual’s employment contract and/or staff handbook to include information available through the company LinkedIn accounts
- making clear that on termination of employment the individual ceases to have the right to use the company LinkedIn accounts and should delete and not extract, copy or retain any confidential information obtained from it
- requiring employees to sign a warranty when they leave (this is particularly effective in the terms of a settlement agreement) that they have not extracted, copied or retained any client information via LinkedIn.
- ensuring that the password details for the individual’s access to the company LinkedIn accounts are provided on request/termination
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