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Sarah Everton from Employment Law team

Sarah Everton

Head of Employment Law

01782 525012 sarah.everton@myerssolicitors.co.uk

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Has your employee social media policy kept pace with business practice?

4th September 2023

Has your employee social media policy kept pace with business practice?

When did you last review or update the policy on social media use for your employees? Does it reflect the way that social media is being used on a day-to-day basis in your organisation?

Deploying social media is now deeply embedded in many employees’ job descriptions, whether for the purposes of promotion and marketing, recruitment or communicating with customers and suppliers.

‘Use of social media is no longer confined to the marketing team, and employers need to manage the risks that come with wider access to such a powerful tool,’ according to Sarah Everton, Head of Employment Law at Myers & Co. ‘Employees’ use of social media creates a wide range of potential liabilities for any business, from making your business vulnerable to losing important contacts through to problems accessing your own accounts when employees leave.’

Although it appears to be an informal means of communication, extracts from social media accounts regularly appear as evidence in courts and tribunals these days. Employers whose staff engage in any social media activity on behalf of their business should give employees clear guidance on expectations. You may need to be clear about which individuals can use social media on behalf of the company and which need to get prior authority before posting anything.

Sarah highlights a few of the risks to consider in deciding whether you need to review any contractual terms, policies, templates, and training.

Who owns the work account?

The legal ownership of each social media account will be determined by the terms of the provider. For example, LinkedIn’s terms state that the account holder owns the account.

It is not uncommon for employees to set up work accounts on behalf of an employer using their own login credentials, but your policies need to ensure that ownership remains with the organisation and passwords are shared or transferred as part of an exit process.

Who owns contacts gathered via social media?

The courts have found that the contacts gathered by an employee on a work account during employment belong to the employer.

It has long been established that departing employees cannot take a database of their employer’s contacts with them to use to compete against them. This principle was applied in the social media age in Whitmar Publications v Gamage [2013]. A former employee was ordered by the High Court to give her previous employer the login details of four LinkedIn groups that she had managed for the employer. The former employee had used the groups to promote a new business that she and two other former colleagues were setting up. This case provides some comfort for employers, but case law in this area is only in its infancy.

Using personal accounts

The situation becomes less clear when employees use their personal accounts for work purposes, for example where the employee already has a number of relevant contacts and they use the same account for work and personal purposes. Employers should set clear boundaries for the employee’s use of personal social media accounts for work purposes. To avoid blurring of lines and risking losing business contacts, you could decide that this is not permitted. This needs to be made clear to employees in a policy, as discussed later, and could also be included in employment contracts.

If you do allow the use of personal accounts, your policy should state that any business connections made while working for you belong to the company. The policy should make arrangements for providing that information when they leave and require them to delete the information from their account, without copying. This may be difficult to enforce, particularly if it is hard to determine which contacts were made through work-related activities and which in their personal capacity or through a previous employer.

What to address in your policy

We recommend having a social media policy, which is implemented through training at induction and with regular updates.

The policy needs to be reviewed regularly and should tie in with other relevant policies, such as:

This should address issues you expect to see in any social media or communications policy, for example not to make any discriminatory posts, and should also give guidance on the use of social media for company purposes.

There are many risks to a business through employees’ online activities, which the policy can address as relevant to your business. Although not exhaustive, here are some of the issues to consider:

Contractual provisions

In addition to having a well-drafted policy, relevant contractual provisions need to be fit for purpose and bespoke to your business, rather than using outdated, generic clauses.

Clauses that may be in need of a refresh include confidentiality and data protection. If there is a risk that the employee could use the contacts after their employment has ended to compete or lure away customers, a restrictive covenant limiting what they can do for a specific time could give you further protection. This can include specific requirements in relation to social media accounts.

Contractual rights allowing you to restrict employees’ work activities during notice periods – garden leave clauses – can serve a similar aim to a restrictive covenant.

How we can help

We can help with ensuring your policies and contracts, as well as your ways of working, protect your business as its use of social media evolves.

For further information, please contact Sarah Everton in the employment team on 01782 525012 or email sarah.everton@myerssolicitors.co.uk. Myers & Co Solicitors has offices in Stoke-on-Trent, Staffordshire.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.