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Kerry Eastman

HR Advisor - Uckfield

23rd November 2021

Ownership: Business Contacts on Social Media

Ownership: Business Contacts on Social Media

There’s no doubt that the use of social media for business purposes has increased over recent years. Many employees will connect with customers and/or clients via their own business professional profiles on platforms such as LinkedIn for business promotional purposes. But where do employers stand when an employee leaves the business and can they ask employees to remove such contacts from their personal profiles?

The law surrounding this issue is still a grey area and tricky for an employer to enforce, particularly where an employee has used their pre-employment profile to connect with such contacts and where such contact connections existed before. That said, whilst case law in this area is still developing, the Courts have handed down some decisions which help employers deal which such scenarios.

In the case of Hays Specialist Recruitment (Holdings) Limited v Ions 2008, the Courts had to decide whether Mr. Ions, a Recruiter, had used client information which he had copied from Hays’ system to his personal LinkedIn account. An inspection of Mr. Ions’ email account provided evidence that he had invited two of Hays’ clients to join his network on LinkedIn.

Mr. Ions later argued that Hays had provided consent for him to use LinkedIn while he worked for them and had in fact, encouraged him to connect with clients. He claimed that once the invitation to connect had been accepted by a client, the information ceased to be Company-confidential information as it was then accessible by other users on LinkedIn.

The Courts did not accept Mr. Ions’ argument, noting that even if Hays granted such permission, it was unlikely that this authority extended to the use of such confidential information beyond the end of his employment. They ordered him to disclose all of his LinkedIn contacts his employer had requested.

As a preventative measure, employers should ensure that business professional contacts are added to the employer’s data base as well as the employee’s LinkedIn profile. This would mitigate any risk of losing the contacts if the employee leaves.

What other preventative measures can employers put in place to avoid losing their customers?

  • Inductions: During the induction process, an employer should address the ownership of social media contacts made while the employee works for including what happens to such contacts after the employment has ended.
  • Social Media Policy: Put in place a Social Media Policy which deals with the ownership of social media contacts. The policy should clearly set out what contacts would be construed as ‘confidential information’, for example, business contacts made during the course of employment. It should also set out what an employee will be required to do with such confidential information after their employment has ended, for example, they will be required to delete all such details from their personal electronic equipment and any social media accounts, such as LinkedIn.
  • Business LinkedIn Profiles: Where an employee is required, as a condition of their employment, to represent the employer on LinkedIn for marketing/role specific/promotional purposes, a separate business profile should be set up using the employee’s work email address on the basis that such a profile will only be accessed via the employer’s electronic systems and during working hours. The employer should keep a record of all account usernames and passwords so that accounts can be closed when the employee leaves.
  • Restrictive Covenants/Post Termination Restrictions: Where absolutely necessary, employers can include ‘non-dealing’ and ‘non-solicitation’ restrictive covenants/post termination restrictions within an employee’s Contract of Employment. Such restrictions however, should go no further than is necessary to protect an employer’s legitimate business interests so that, if challenged by the Courts, they will be enforceable. Top tip: don’t rely on a ‘one size fits all’ approach when drafting restrictive covenants. They should be tailored to your business.

Many employees are of the belief that LinkedIn contacts form part of their personal profiles and they are therefore entitled by law to take them with them on termination of employment. While there is currently not enough case law surrounding this area, employers are advised to have up to date policies, rules and/or procedures in place which address the ownership of contacts made whilst someone is working for them and how the Company will deal with the contacts after the employee has left.

Do you need help implementing a social media policy? The GatekeeperHR team is here to help. GatekeeperHR is a fixed cost, employment law and HR retainer service which provides businesses with access to a dedicated team of experienced lawyers and HR professionals who you can speak to, or meet face-to-face, at any time. The service includes a full HR compliance audit, access to an online portal full of valuable employment law and HR resources and an annual training session on topics of your choosing. To find out more about GatekeeperHR, please contact us.

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