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!
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