LinkedIn is a hugely popular tool for professional networking – but it does have problems especially as employees can obtain and retain on their profile confidential information relating to their employer’s business, such as the contact details of clients or customers. Questions around who owns such information and what employees are entitled to include in their LinkedIn account remain unanswered in case law. We addressed these issues in our previous article on LinkedIn which can be found here. However, LinkedIn continues to be the subject of or involved in employment disputes and the Employment Tribunal case of Flexman v BG International Ltd (2012) illustrates this.
Mr Flexman was anonymously reported to his employers due to the contents of his LinkedIn account in early April 2011. Mr Flexman had included information on his profile which was considered as confidential to the company. Mr Flexman was instructed to remove the information from his profile. He took a few days to do so. He was then told that the company were taking disciplinary action against him. Mr Flexman feared for his job and asked what options were open to him, which the company took as him wanting a payoff and leaving. They offered money under a compromise agreement, which Mr Flexman refused. The disciplinary procedure was then commenced. The manager conducting the disciplinary hearing felt that Mr Flexman should probably get no more than a ‘slap on the wrist’, subject to a determination of how sensitive the information was that had been placed on the LinkedIn profile. The manager wanted to indicate as much to Mr Flexman during the hearing, but the HR team told him not to do so.
At this point, the company seem to get themselves in a pickle with the matter. Mr Flexman raised a concern that HR was involved in making a disciplinary decision when it should be the manager conducting the hearing. The company’s legal counsel agreed with Mr Flexman’s concerns and deemed that the entire process should start again. Mr Flexman felt this would delay the process still further and objected to that. He then raised a grievance and so the company decided to halt disciplinary proceedings whilst the grievance was dealt with, even though Mr Flexman indicated that he would rather the disciplinary was dealt with. Mr Flexman also referred in his grievance to the offer of a payment. The manager dealing with the grievance felt all such matters needed investigation, causing yet further delays. At this stage around 8 weeks had passed and on 17 June Mr Flexman resigned and brought a claim for constructive dismissal.
The Employment Tribunal held that Mr Flexman had been constructively dismissed. They cited the unnecessary delays as prolonging Mr Flexman’s anxiety about being at risk of dismissal. This could have been assuaged if the manager had been able to tell him it was probably no more than a ‘slap on the wrist’. It was also felt that the interventions from the legal department were unfair. The Employment Tribunal agreed that Mr Flexman had resigned because he had lost faith in his employer’s ability to deal with the disciplinary fairly.
Unfortunately for those looking for case law on social media usage, the case does not help answer any questions you may have about an employee’s use of LinkedIn, but it does send a reminder that when considering matters related to information on a LinkedIn profile (or other networking or social media) it is still important to act fairly and reasonably when dealing with such matters.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).