Employment law and social media

28 Jan 2013

With Flexman v BG Group plc being heard recently, it has brought the use of social media and its impact on employment law back to the surface.

This case was based on inappropriate reporting of some of an employer’s confidential information on LinkedIn.  After the employer had discovered this information had been posted, the employee was asked to take it down.  Despite an initial refusal to do so, the information was eventually taken down.

Mr Flexman was disciplined following this and because of the long and protracted disciplinary process, the Tribunal held that the mutual trust and confidence had been broken between Mr Flexman and his employer and as such he was able to claim constructive dismissal.

Our view:

Posting confidential information on a social media site is likely to lead to disciplinary action being taken.  Before going as far as dismissing the offending employee, employers should be careful to first consider the nature of the information that was disclosed and confirm that the disclosure of that information is serious enough to justify such an extreme decision.

It is also important to consider how private the information was intended to be: there would be a considerable difference in the treatment of a public posting, compared to a private message.  Employees can rely on their right to privacy when the information is communicated in a sufficiently private method but the Tribunal will take into account how easily a ‘private’ message could be passed onto another (see Crisp v Apple Retail UK Ltd) and it may be that an employer could justify infringing on the right to privacy because of the need to protect its reputation.

The monitoring of social media sites also poses a threat to the implied term of mutual trust and confidence that is key to all employer/employee relationships.  Where an employer is choosing to review an employee’s personal social media site, if they cannot show that they are following a clear policy and that there is a genuine business need to do so, there is a very real risk of this action breaching the mutual trust and confidence, which could lead to the employee successfully claiming constructive dismissal.

Employers need to consider their approach to social media and put a social media policy in place, if they have not already done so.