Social networking has a host of advantages. It can raise company profiles, develop business opportunities with a wider audience and strengthen existing relationships. Many employers also use social media to advertise and recruit new employees to screen candidates’ social networking pages before offering interviews.
There are, of course, benefits for employers in using social media in this way as it can save them time and money in recruitment and also reduce bureaucracy as employees can make direct contact with potential employers, which can be a much quicker process than traditional recruitment procedures.
However, employers also face various dangers. Not only might they exclude certain potential employees who do not have access to the same social media facilities but, more seriously, employers also run the risk of facing discrimination claims if they have made a recruitment decision based on protected characteristics defined in the Equality Act 2010, such as sex, age, race, disability etc. which they have observed from an applicant’s profile. Employers should therefore always be aware of the risks and ensure they do not make recruitment decisions because a candidate has a protected characteristic.
Who owns contact information contained on social networking sites?
"Ownership" of client contact details remains relatively untouched by the courts. Not so long ago all client data was held in physical files and therefore ownership was clear. However, electronic storage capabilities have created additional risks for employers as the removal of company data no longer requires the physical abstraction of tangible property.
If a contact list database is developed and used for business purposes by an employee in the course of his employment, then the employer is regarded as the maker of the database (subject to any agreement to the contrary). However, many businesses are now encouraging employees to create profiles on internet sites such as LinkedIn and Twitter. There is a clear distinction between ownership of the account and ownership of the information contained within that account. While an employer may encourage an employee to open an account, the employer can never be a party to the contract and cannot force an employee to hand over the password or login details to his account. But when the LinkedIn facility has trawled an employee's work email account in order to invite company clients to be LinkedIn contacts - databases which he only had access to by virtue of his employment - who owns that contact information contained within the account?
Client or candidate contact details are only capable of being "owned" if the employer can demonstrate they amount to confidential information. While information such as telephone numbers, addresses etc clearly belongs to the third party to whom it relates, if a business invests time and cost in building up a network of contacts, that body of data gathered as a result of that investment will be protected by confidentiality. However, can an employer still request information that an employee has obtained legitimately during the course of his employment?
In Hays Specialist Recruitment1, a recruitment consultant was encouraged by his employer to join LinkedIn. The employer alleged that the recruitment consultant had deliberately transferred contact details from the employer's confidential database to LinkedIn and that this information belonged to the company. In this case the court did not deliver final judgment on whether the LinkedIn contact details remained confidential information of the employer. However, it did require pre-action disclosure of certain documents, which suggested
In summary, the ownership of client contact details on social networks remains somewhat ambiguous. However, there are steps that employers can take to mitigate the threat of employees "taking" company data/contact details with them on departure from the company. Employers should have policies in place in relation to social media and online networking which are clearly communicated to staff. Employment contracts should be carefully drafted to ensure they provide effective protection and contain clear confidentiality and proprietary ownership clauses and restrictive covenants.
Damage to reputation
Employers should also consider when to encourage staff to use social media. As the lines blur between personal and professional life for employees, employers must take precautions to protect their reputation and to ensure that employees are not infringing defamation or discrimination laws through the use of social networking sites. LinkedIn encourages users to add information about their work duties and their employer, and to engage in forums and discussions. Employers should be aware that they can be held vicariously liable for acts committed by employees in the course of their employment. When drafting policies employers should:
- specify what use is permitted at work and when;
- advise employees that they may face disciplinary action for comments posted on social networking sites outside of working time. Some employers prohibit any reference to their name on sites such as Facebook or blogs but, as a minimum, employers should make employees aware that they may face disciplinary action for any derogatory comments they make or following the disclosure of any confidential information;
- flag the seriousness of breach and potential sanctions for employees, including the possibility of gross misconduct;
- remind employees of the public nature and permanence of information posted on these sites and that misuse may also amount to a breach of the equal opportunities policy; and
- always remember that they need to apply these policies consistently and bring them to employees' attention.
If appropriately used and monitored social networking sites provide business advantages but the risks of misuse are obvious.