Facts
John Flexman was a senior HR Manager at BG Group, a FTSE 100 company, and was reported to have been head of graduate recruitment. He, like many of his colleagues, created a LinkedIn profile and posted information about his role at BG Group.
In his LinkedIn profile, Mr Flexman had ticked the box to say that he was interested in career opportunities and also uploaded his CV to the website. In his CV Mr Flexman listed his achievements, skills and experience including information relating to his role at BG Group.
A complaint drew his employer's attention to the profile and on viewing the page that Mr Flexman had created, BG Group was unhappy with the content. Mr Flexman was invited to a disciplinary hearing, as his employer alleged that he had made inappropriate use of social media. This dispute led to Mr Flexman resigning and claiming constructive unfair dismissal.
The disciplinary allegations
At the disciplinary hearing, the allegations against Mr Flexman were that he had revealed too much information in his LinkedIn profile and specifically in his CV, which was available for public viewing on the website. Mr Flexman was alleged to have revealed sensitive company information in his CV, such as details of how he had reduced the rate of staff attrition.
BG Group was obviously less than pleased about this and also said that the ticking of the career opportunity box was a breach of company policy on conflicts of interest.
Mr Flexman claimed that the details he had published were already in the public domain by virtue of the company's annual accounts. He also cited a number of his colleagues (including the manager of the disciplinary process), who had ticked the career opportunities box and not been disciplined.
Points to note
As the case is ongoing, we do not yet have a decision to report. However the facts of the case allow us to draw out some important principles about social media and the workplace:
This case serves as a reminder that consistency in approach is important. Disciplining one individual for ticking the career opportunities box and not another will not assist an employer's defence and could be embarrassing if the other employee is the disciplinary hearing manager.
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Seriousness of the misconduct
The Flexman case highlights the pitfalls in social networking and cases in this area are becoming more common; in a previous briefing we looked at a case where an employee posted comments about her job on Facebook and was dismissed as a result.
In the event that employers are faced with taking disciplinary action against an employee for comments posted online, it is worth considering the potential damage caused by the comments before deciding on the sanction. In some ways posting on LinkedIn is more problematic than Facebook because the information shared on LinkedIn is designed to be seen by business contacts and there is a clear connection to the employer, whereas Facebook is predominantly used in a social context. In a case where the comments are made on Facebook, the employee does not include any reference to the employer and has privacy settings so that only friends can see the post, the damage to the employer is arguably less and the misconduct could be viewed as less serious. Therefore employers will need to consider the impact of the remarks made online to ensure that any resulting disciplinary action is reasonable in the circumstances.
Employers should adopt a social media policy and apply it consistently to all employees. Depending on the nature of the work, it may be appropriate to ban access to social media sites during working hours or alternatively it may be preferable to limit access to social media websites to breaks and lunchtimes only.
Employers may also want to review their disciplinary policy to check that it includes a section dealing specifically with the misuse of social media websites. Employees should be made aware that posting (or refusing to remove) derogatory or commercially sensitive information will be dealt with under the disciplinary policy.
An employer is not permitted to "fish" for information from the social media profiles of its employees but may want to consider setting up a Google alert for the name of the organisation. This would enable it to see the context in which the name of the organisation was being used on the internet. Twitter posts show up on Google searches and there are plans for Facebook entries also to be included in Google searches. Monitoring information may not prevent information being shared but at least the employer would be able to deal with it quickly if it did happen.
To avoid cases ending up in the employment tribunal, it would be wise for employers to invest in training their employees on using social media responsibly. It should go without saying that confidential information should not be shared online but employees may need reminding that it is also advisable to keep business contacts and friends separate; adding business contacts in Facebook is not a good idea.