A BG Group employee resigned and claimed constructive dismissal after he posted his CV on LinkedIn and this led to disciplinary action. As we await the Employment Tribunal verdict in what is thought to be the first UK case of its kind, Chris Stack and Nicola Doran dig deeper into some of the allegations in the case and draw out key lessons for employers.
Topic: Social media
Who: Mr Flexman v BG Group
When: January 2012
Law stated as at: 1 February 2012
In recent years the use of social media has become a feature of everyday life as people use websites such as Facebook, Twitter or LinkedIn as part of their private lives. However their use of such forms of communication can overlap with their employment relationship, potentially creating headaches for employers.
As more employees use social media to express their views or opinions, employers are having to adapt to ensure they have suitable policies in place to handle inappropriate use. The importance of this has been highlighted over the past few years by, for example, the dismissal of 13 Virgin Atlantic flight attendants for branding its passengers "chavs" or the J.D.
Wetherspoons' employee who was dismissed for making derogatory comments about two customers on Facebook.
In January 2012 issues regarding the use of LinkedIn came to the fore as the media reported on the case of John Flexman, a former Graduate and Development Manager at BG Group who resigned from the company following a dispute over the posting of his CV on the website.
Mr Flexman's Use of LinkedIn
According to reports, when Mr Flexman posted his CV onto LinkedIn he ticked the box to indicate an interest in "career opportunities". The company considered that in doing so he was in breach of its policy on conflicts of interest, which prevented him selecting the "career opportunities" option, and that his conduct constituted "inappropriate use of social media".
In consequence, Mr Flexman was invited to attend an internal disciplinary hearing and the dispute over his use of LinkedIn ultimately led to him tendering his resignation in June 2011.
Mr Flexman's claim of constructive unfair dismissal was heard by the Reading Employment Tribunal in January 2012 and we are still awaiting the judgment. However it is thought that his case may be the first in which a Tribunal has had to consider constructive unfair dismissal in the context of a dispute over information posted on LinkedIn.
Just a dispute over "career opportunities"?
Although reports of Mr Flexman's case have focussed on his decision to tick the "career opportunities" interest box, it appears that he may have gone further than that. It is alleged that Mr Flexman also posted information onto LinkedIn which had negative connotations for the BG Group. For example, he credited himself with the reduction in staff attrition rates, which the company contends is confidential information. Moreover, Mr Flexman's CV also referred to BG Group's "inadequate and ineffective global resource planning" and commented that the company "lacked active talent management".
Mr Flexman's position is that the information he posted was available in the public domain through the company's annual reports. He also stated that 21 of his colleagues had ticked the option to suggest that they were interested in "career opportunities", without reprisal.
The Flexman v BG Group case highlights two legal issues for employers. The first relates to Mr Flexman's indication of his potential interest in other career opportunities. This, in itself, is tantamount to an employee having contact with a recruiter or making enquiries about another post. Whilst from a pragmatic point of view it may be unwise for an employee to do this so publicly, historically there has been nothing an employer can do to prevent an employee looking for alternative employment opportunities.
The second issue relates to the posting of information relating to an employer's business on any social networking site or, more generally, the dissemination of such information via the internet or email. Employers do have a legitimate interest to protect here and should guard themselves against employees unilaterally making any confidential, potentially sensitive or derogatory statements on the internet.
Actions for Employers
Qualifying employees have the right not to be unfairly dismissed. Therefore, an employer must show that it has a potentially fair reason for dismissing an employee and that it has followed a fair procedure in doing so. In circumstances where an employer is looking to discipline or dismiss an employee over their use of social media, the internet or email it is of paramount importance that employers are able to call on breaches of robust and comprehensive social media, internet and email policies.
These policies should clearly set out the company's position and highlight the potential risk of disciplinary sanctions and, ultimately, dismissal for non-compliance. They should require employees not to:
- divulge any confidential information;
- make any potentially derogatory, defamatory or damaging comments about the company, its employees, customers, clients or suppliers;
- engage in any form of cyber bullying or harassment; or
- express any personal views in circumstances where they may be construed as the views of the employer.
The policies should also reserve the employer's right to carry out monitoring of employees' use of the internet and email. If possible, employers should require employees to expressly sign up to the relevant policies to signify their consent.