Expert Advice: LinkedIn legalities

Q: “A number of employees are connected with clients and suppliers to my business through LinkedIn. Do I have any rights over this as their employer?”

A:Social networking is now the norm and platforms such as LinkedIn are commonly used by individuals to maintain and grow their personal professional relationships.

Businesses often use social media platforms to increase their visibility promoting their services and products to clients, key contacts and prospects. However, there are some risks involved.

A recent High Court case, which ruled in favour of the employer, heard that a number of ex-employees had actively used LinkedIn to promote a new business being set up in direct competition targeting contacts made during their employment before resigning.

It also transpired during proceedings that one of the ex-employees involved in the case had been responsible for managing the social media activity for her previous employer and had abused this by setting up separate LinkedIn groups promoting the new business using her previous employer’s equipment and targeting its contacts.

The Court ruled that the employees had ‘crossed the line’ and ordered both that exclusive access to the additional LinkedIn groups be given to the previous employer and ruled that the individuals involved be prevented from having any further access.

As online marketing activity increases, SMEs who may find themselves particularly vulnerable, can take tangible steps to protect themselves from the potential threat which may arise from social media.

As LinkedIn is independently owned it is difficult for businesses to control employees’ activity.

If an individual accepts a new job with a different employer and updates their LinkedIn profile accordingly, all their contacts are alerted as to their new employer via LinkedIn. Many of these are likely to be contacts built during, and for the benefit of, their previous employer. This can prove a real issue if this happens before the business has informed its clients and suppliers as appropriate and can potentially dilute or damage key relationships.

It can also pose a threat as previous employees can leverage the relationships built for the benefit of their new employer who may be a direct competitor.

In the current precarious economic climate, it is advisable for businesses to take steps to protect themselves from these risks by including restrictive covenants within their employment contracts specifically addressing how personal social networking sites are used by staff during their employment and in the event that they leave to work for a competitor. Furthermore, the use of such sites can also be addressed in a Settlement Agreement on the termination of employment if appropriate.

Much in the same way that employment contracts will include confidentiality clauses advising employees of the appropriate behaviour relating to the use of confidential information and company documents, social networking sites should be approached in much the same way.

Although in the eyes of the law, the governance of social media remains a grey area, the recent High Court ruling serves both as good news for employers and as a warning of the real threat to businesses that social sites such as LinkedIn can present.

Taking the appropriate steps to protect your business can avoid these risks and I would recommend all businesses review existing employment contracts on an annual basis allowing the opportunity to include additional restrictive covenants dealing with such matters as social networking sites where appropriate.

About the Author

  • Alan Lewis

    Alan joined Linder Myers in 1990. He became a Partner in 1998 and was responsible for setting up the Employment department in Manchester. Alan now leads the Employment team in the Manchester office. He mainly works from Manchester, although also acts for clients from the Lancashire office. Alan has considerable experience of representing both employers and senior employees in a wide range of Employment Tribunal and High Court disputes.


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