Dear Auntie,

I am the HR director of a large company.  It has recently become apparent that many of our employees use a number of social networking websites like Facebook whilst they are at work.  In relation to certain employees I suspect they are spending a significant amount of company time on the websites.  However, I am concerned about issuing a company-wide policy stopping its use altogether as there are some people in the business who use these sites for the benefit of the company in order to build client contacts and it is actively encouraged by some department heads.

How can we stop employees using these websites for purely personal use? With regard to employees using it for the benefit of the company, how can we ensure that the company retains possession of the contacts on their network once they leave the company? Our client database is of major importance to the company.

Yours sincerely,

Mr Beebo

 

Dear Mr Beebo

Employers may govern their employees’ internet usage by publishing an internet usage policy.  You could issue a policy that allows use of such websites at break periods or not at all.  Alternatively, you could block access to such websites or certain such websites and only allow certain employees to access the websites i.e. those who may have a work-related reason – making clear that use of the websites is only for work-related purposes.  You can enforce such a policy by making clear that contravention will result in the offending employees being subject to the company’s disciplinary procedure. 

In order to ensure that employees who are using social networking websites are only doing so for the benefit of the company you could monitor employees’ internet usage. However, whilst doing so you should be conscious of your obligations under the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000.  Ensure that employees are made aware that their internet usage may be monitored and if, when monitoring employees, you stumble across activity that is clearly of a private and personal nature you should desist from looking at the information and discuss the matter with the employee.

With regard to employees using social networking websites for the benefit of the company – this is an area where companies such as yours could be left quite vulnerable and requires that the company takes preventative measures in order to protect its client database.  However there is some helpful case law on this point. The recent preliminary hearing in the case of Hays Specialist Recruitment (Holdings) Ltd v Ions 2008 has highlighted the tension between encouraging employees to use social networking sites and the ability to claim that the contacts remain confidential information at the end of employees’ employment.  The fact that such information is put online and is accessible to other persons in the online network makes it difficult to categorise as confidential.  The court held, in this first instance decision, that contacts uploaded from Ions’ former employer and held by him on the social networking site LinkedIn could be disclosed to his former employer in order to allow it to determine whether there has been a breach of the employee’s restrictive covenants in relation to not competing and not copying and retaining confidential information as defined in the Ions’ employment contract.

In light of the Ions case, you should ensure that any employees who have access to your client database have confidentiality clauses in their employment contract which make clear that such information is private and restricts the use of such information.  Ideally, the definition of client database in the contract should encompass information held by the either by company, the employee or a third party’s website.

Secondly, the court in Ions implied that even if an employee whilst in employment uploads contacts with the authority of his former employer that authority is limited to using the contacts in the performance of his duties with the employer.  Post-termination use of the contacts would be prohibited.  It is advisable that you make explicit that which has been implied by the court and only provide access to social networking websites on the basis that they may only be used for the benefit of the company and not post-termination. In addition, your employees’ employment contracts should require that on termination of their employment any contacts on social networking websites are removed and deleted from the employee’s own online network. As an extra precaution you could insist that all departing employees using such websites make a written declaration that they have carried out such an exercise.

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