Managing the use of social media in the workplace

Cases relating to social media misuse have certainly increased of late

The first case of dismissal on the grounds of social media misuse was in 2005 when a Waterstone’s employee was fired for writing a daily blog containing details about his ‘evil boss’ and his employer ‘Bastardstone’s’.

Today, our social media habits are a daily (and sometimes hourly) activity with employees accessing social media on their phones throughout the day.

Despite this, according to a recent survey by Viking Direct, almost one third of UK companies still don’t have social media policies in place.

A common argument made by employees facing disciplinary action because of social media is that it is unrelated to work and an invasion of their privacy.

This is why it is important to have a robust policy and to apply reasonableness and common sense when applying the policy.

As an example, in 2001, in Preece v J S Wetherspoons, a pub manager was dismissed for gross misconduct after posting offensive comments on her Facebook account after a disagreement with customers.

Wetherspoons had a comprehensive social media policy, which is partly what influenced the tribunal’s decision to uphold the dismissal.

In Witham v Club24, Miss Witham was dismissed for a similar Facebook post, but the tribunal felt the company’s client was unlikely to seek the termination of their commercial contract because of her trivial comments.

It’s important to remember even with a social media policy in place, you need to look at the situation reasonably and objectively based on the circumstances and the extent of any damage to reputation.

Databases and LinkedIn connections

A frequently asked question relates to connections on LinkedIn and who they belong to.

Penwell Publishing (UK) Ltd v Ornstein looked at the ownership of a client database brought to the company by a new employee and concluded that the contents of a journalist’s ‘contact book’ stored electronically in his Outlook address book belonged to the employer.

In Whitmar Publications Ltd v Gamage, the High Court found that the employer could claim ownership of data on a LinkedIn account where it could demonstrate it had a sufficient degree of control over it on a day-to-day basis.

The Copyright and Rights in Database Regulations 1997 defines what creates a property right in a database.

It states that a database is a collection of independent, works data or other material managed in a systematic way.

There has to be ‘substantial investment in obtaining, verifying or presenting the contents of the database’.

If this is done through work, the employer is regarded as being the owner of the database.

Applying these principles to LinkedIn, it’s easy to see how courts are willing to regard the list of connections as an employer’s property where it has been created in the employer’s time using its resources and under its control.

Personal contacts that your employee adds without any input or control by you as an employer is not going to give you any rights over the contacts.