LinkedIn or Locked-Out? Employment Law Implications of LinkedIn

The recent decision of the Employment Tribunal in Flexman v BG Group (unreported) has once again placed the popular professional networking site LinkedIn in the spotlight in relation to employment law.

The case concerns John Flexman, an HR Manager on £68,000 a year who claimed constructive dismissal against his employer, the gas exploration company BG Group. BG Group had contacted Flexman while he was on holiday to order him to remove any mention of the company on his LinkedIn profile, apart from the dates that he had worked there.

The company claimed that Flexman had contravened their Social Media policies by uploading his CV onto LinkedIn. BG Group further claimed that by selecting the 'career opportunities' tick-box on his LinkedIn profile he had also breached their policies. Finally, the company accused Flexman of compromising their confidentiality by mentioning in his online CV that he was aiding the company in reducing their 'attrition rate'.

This fallout led to an internal disciplinary investigation and a subsequent hearing against Flexman in April 2011, where he was informed that he was at risk of dismissal. Relations degenerated so badly from this point onwards that Flexman resigned in June 2011, claiming constructive unfair dismissal against BG Group. This is the first instance in the UK of an employee being dismissed due to LinkedIn (although there have been a number of dismissals and subsequent court cases concerning employee use of Facebook).

The Employment Tribunal have recently held (after the case going part heard in February 2012) that Flexman was correct in resigning and claiming constructive unfair dismissal as BG Group were guilty of a 'serious breach' of contract. The company's breach was due to their unacceptable delay in dealing with the case and, secondly, their failure to address a grievance raised by Flexman that was linked to the incident (whereby Flexman demanded, among other things, to know the identity of the Judas who had alerted the company to his LinkedIn profile).

There is already precedent for legal action in the UK regarding LinkedIn and employment. In Hays Specialist Recruitment (Holdings) Ltd v Ions [2008] IRLR 904, an employer successfully secured an injunction to force an employee to give them his LinkedIn password so that they could remove confidential information that he has uploaded to his profile from a work database. Interestingly, contacts that the employee had made on LinkedIn while he worked at the company were held to be his property rather than the employers. This was despite these contacts being garnered 'in the course of employment', which is the usual legal test when considering who owns employee work that is created as part of their job.

Co-incidentally, a test case regarding an employees's use of LinkedIn is about to be heard in the US and its outcome may well influence future decisions in the UK. The case concerns an employee who operated a LinkedIn account, partly in her spare time and partly in the course of employment. When she left the company her employer blocked her LinkedIn account claiming that it was their property. Watch this space for an update when this case is decided, after which the legal landscape should be somewhat clearer regarding who owns an employee's LinkedIn content, when some of such content was created in a work capacity.

LinkedIn now has over 100 million users worldwide and claims to have two new joiners every second. It has a global reach that is vital for the marketing efforts of companies and equally important to the career progression of employees. Employees need to be mindful of any company Social Media policies that they may fall foul of during their employment when utilising the site. They must also guard against breaching gardening leave restrictive covenants in compromise agreements by prematurely announcing on LinkedIn that they have either, ceased working somewhere or, are about to work somewhere else.

Conversely, employers must ensure they have Social Media policies to cover LinkedIn and protect their reputations as well as stop possible leaks of unwanted news concerning new and departing employees. Regarding compromise agreements when employees leave, the current thinking in employment law circles is that non-compete clauses are vital as non-solicit clauses will be almost impossible to police and enforce when it comes to LinkedIn. After all, work friendships are also formed and maintained via LinkedIn and what information is disclosed at little Jonny's first birthday party over a glass of Champers between former workmates cannot be guarded against, nor should it.

What is certain is that LinkedIn along with other Social Media sites, through their ubiquitous reach and ability to forge or flounder reputations, have ironically penetrated even the private contractual relationships between employer and employee. Employers fail to now have a Social Media policy at their own peril!

Women's Rights Storm the Rickety Workplace Citadel

The long fight for equality in the workplace has taken a significant step forward with a recent Supreme Court judgment extending the time-limit for equal pay claims and the European Union's announcement of an increased mandatory quota for the number of women directors who must sit on company boards, to be debated in November 2012.

The Supreme Court judgment relates to 174 former Birmingham City Council female workers who were employed in traditionally female roles such as cleaners, care staff and cooks. Their equal pay claim arose as men in equivalent roles, such as road workers, street cleaners and refuse collectors were given consistent bonuses of up to £15,000, despite them being on the same salary as their lady counter-parts.

Birmingham City Council appealed all the way up to the Supreme Court, arguing that the former employees should have lodged their claims with an Employment Tribunal within 6 months of the termination of their employment, as is the current legal standing under section 129(3) of the Equality Act 2010.

The Supreme Court rejected their rationale and has opened the door for all equal pay claims to be heard in the civil courts, which have a 6 year time-limit in which to bring a claim. This is a substantial increase on the previous 6 month time-limit in the Employment Tribunal. Fortuitously, it also offers the remedy of higher damages which are uncapped in the High Court, unlike in their Tribunal cousin.

While this is clearly a decision in the interests of justice and gender equality, it poses possible problems for employers. For example, if a former employee with a valid claim makes a late claim 5 or 6 years down the line, it may be difficult for employers to obtain the relevant records, which are often destroyed after a few years. This could in turn affect any negotiating power they may have and cost them more in settlement or damages. It will also effect forward planning in terms of having a company budget for prospective litigation, as well as the extra costs of retaining and storing staff records for 6 years. The worst case scenario for employers could be a tsunami of retrospective claims which could seriously de-rail smaller companies' finances and even lead to staff lay-offs, which would certainly be darkly ironic.

In a related development, following on from Lord Davies report 'Women on Boards' published in February 2012, which recommended that FTSE companies should aim to have 25% of their boards composed of women by 2015, the rightful furore has reached the hallowed halls of the European Union.

The EU has proposed a Directive that would make it mandatory for Members States to ensure that 40% of all boardrooms are composed of female directors, with eye-watering sanctions for those who do not comply. This has been inspired in part by similar national laws in various Scandinavian countries, such as Norway, who have gallantly led the troops in the battle for all-encompassing gender equality in western society.

However, there has been substantial resistance, including from the UK, with many arguing that the measure will be too expensive and difficult to enforce for some less sophisticated Member States. Moreover, some female commentators have pointed out that the quotas do not address the real issue, which is often loss of female talent due to glass ceilings or family commitments. Thus, the real challenge may lie in employers removing barriers or offering more flexible working alternatives.

This resistance has led to the EU announcing that it is to postpone the vote on the Directive, which was mooted to take place in October 2012, and has extended the time for the enlivened debate to be heard in November 2012. Either way, this small delay does not represent a fatal re-routing of the path to the New World that awaits.

The Suffragettes would certainly be proud of the recent progress in equality of the sexes in the workplace, however, as with all movements for justified change, the cultures of old will need to be shaken and new thought given by employers to how this changed landscape will flourish for all, as it surely should.