Category Archives: Social Media

Hard Work Needn’t Be It’s Own Reward!

GulliverImageThis is an article designed to ensure that all the hard work applied to building your business does not exit with your departing employees!

Even with the most effective engagement strategy, employers will not please all of the people all of the time. For this reason, it is paramount for employers to have strategies in place to protect their business if key employees leave.

There are many ways in which an employer may protect its business, and choosing the most appropriate (which is likely to be a combination of the areas below) will depend on the type of work that is carried out and the industry sector in which the employer operates. Post-termination restrictions and confidentiality clauses are commonly used, but employers should also consider the potential impact on their business of the use of social media including LinkedIn and Facebook.

POST TERMINATION RESTRICTIONS

Post termination restrictions, also known as restrictive covenants, should do what their name indicates; restrict employees’ activities after their employment has ended. Usually, these restrictions are contained in Contracts of Employment and fall into three categories:

  • Non-Solicitation of employees/clients: this essentially means that the employee is agreeing not to contact the employer’s clients (or possibly potential clients) to obtain business from them and/or agreeing not to poach their former colleagues;

  • Non-Dealing: this means that the employee is agreeing not to do business with clients (or possibly potential clients); and

  • Non-Competition: this is the most difficult type to enforce because of its restrictive nature, but in essence means that the employee is agreeing not to work in competition with the employer.

The key point to remember with post-termination restrictions is that there is a general rule that they cannot be enforced because they are contrary to public policy as an unlawful restraint of trade, unless the employer can show that:

  • it has a legitimate interest that it is appropriate to protect (for example, trade connections or confidential information); and

  • the protection sought is no more than is reasonable.

The public policy rule means that it is very important that post-termination restrictions are carefully drafted. To ensure there are strong prospects of enforcement, consideration will need to be given to (amongst many other factors):

  • the seniority of the employee;

  • the length of time the restrictions last for after termination;

  • what is meant by “clients”; and

  • whether there is any limit in terms of location.

Employers should also pull together as much information as possible about the job that the employee carries out and where they fit in the structure of the business to obtain the most accurate advice on suitable post-termination restrictions.

Thought should also be given to garden leave clauses, which can be very effective; such clauses have the effect of taking the employee out of the “marketplace” during their notice period.

CONFIDENTIALITY CLAUSES

Often employers consider information and knowledge to be fundamental to their business and even well-drafted post-termination restrictions will not sufficiently protect this. Such information and knowledge could include a secret recipe or formula, a list of key business contacts and customers, or specialised IT systems and data which, if disclosed to a competitor or to the general public, could cause damage to their business.

Although “trade secrets” can be protected without having a particular clause in the Contract of Employment, most information, although vital to an employer, will not be considered a “trade secret.” For this reason, confidentiality clauses are commonly included in Contracts of Employment.

Advantages of confidentiality clauses include:

  • they are more likely to be enforceable than restrictive covenants; and

  • they can last much longer than post-termination restrictions.

A good confidentiality clause will protect the business both during and after termination of the employee’s employment, and should set out what type of information is considered to be confidential.

We advise that a confidentiality clause is included in all Contracts of Employment, Service Agreements and Consultancy Agreements.

DATABASE RIGHTS AND SOCIAL MEDIA

Although a confidentiality clause might include reference to databases being confidential, increasingly often we see problems when a dismissed employee seeks to use a database of contacts that he or she has built for the purposes of their work, using social media tools such as LinkedIn or Facebook.

In the information society, databases are simply modern forms of property. A database is often such a valuable asset that businesses are increasingly looking to exploit them in their own right. Many employees will be engaged in producing databases, whether as their main role, or in adding contacts for the purposes of developing the business.

The general rule is that the employer is the owner of the database if an employee has created a database during the course of his or her employment, but this is a developing area of the law when linked to social media. If an employee has used social media to create a database, it will depend on the circumstances as to whether the employee or the employer is considered to be the owner of the database and what the employee can do in relation to contacts made. For this reason, we recommend:

  • setting out rules about the use of networking accounts and how contacts should be recorded and used. This could be by way of a social media policy and/or in the Contract of Employment; and

  • including a clause setting out details of intellectual property rights in the Contract of Employment.

ACT NOW

In summary, to protect their business, employers should:

  1. Get existing Contracts of Employment, Director Service Agreements and Consultancy Agreements reviewed;

  2. Obtain advice on specialist drafting of post-termination restrictions, garden leave, intellectual property and confidentiality clauses; and

  3. Put in place a social media policy and/or contract clause including relating to how contacts made through LinkedIn and Facebook are treated at the end of employment.

Please contact us if you have any queries about how to protect your business, or indeed if you want to find out if you can take advantage of a competitor’s failure to sufficiently protect its business when you want to hire its employees!

The Rio Olympics Are Approaching…What Should Employers do to Prepare?

22444484 - sport icons on computer keyboard buttons original illustrationThe countdown to the Olympics is now in earnest with the opening ceremony just a few days away. Over the coming weeks 306 events are scheduled to be held in Rio. If they have not done so already employers should be considering the potential effects of this four yearly event on their business.  A key priority is ensuring employee attendance. Unlike the 2012 Games in London, few employees will have tickets, but many will intend to watch the Rio Games on the television or internet.

What can employers do to prepare?

  • Decide on a policy for dealing with annual leave requests during the period the Games are on.  If the normal holiday request procedure is to apply, employers should remind employees of this.  If new procedures are to be put in place which simply cover the period the Games run for, highlight these to employees and ensure they are applied consistently.
  • Issue a general reminder of the absence notification/management procedures. That reminder to include a warning that employees could be subject to disciplinary procedures if they are not genuinely sick but provide sickness as the reason for their absence.  Absence levels should be closely monitored to enable the early identification of any high levels of sickness absence.
  • Flexible working may be a consideration which may enable employees to come in later or finish earlier. Considerations can also be given to whether employees can be permitted to swap shifts. Any flexible working arrangements should be carefully handled and recorded to ensure consistency of treatment and to ensure they run for the duration of the Games only.
  • Consider making available a television in a communal area to permit employees to view the Games at work.  This could offer an alternative to employees tempted to either “pull a sickie” to watch the games or to view them at work on the internet.  A number of employees simultaneously watching the games via an internet connection could cause disruption and negatively impact business continuity.  If making a communal television available, employers should highlight that employees will be expected to make up the time spent viewing the Games.
  • There may be an increased use of Social Media such as Facebook or Twitter or websites covering the Games. Employers should ensure that they have a clear policy regarding web use setting out that monitoring will take place, what use is permitted and what the likely sanctions are for a breach of the policy.

In summary…

In aiming for business continuity, it makes sense for employers to be:

  • Flexible – in altering working hours to accommodate viewing
  • Clear – in relation to expectations of leave requests, absence and performance
  • Communicative – discuss these matters with employees as soon as possible and continue to remind them of policies as the Games approach
  • Fair and Consistent  - in particular with respect to the way in which requests for time off are dealt with

Contact Details

If you would like more information or advice on business continuity planning for the Games, absence management or disciplinary procedures please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Managing Social Media in the Workplace – Are You Keeping Pace?

Social Media Apps (123ref)In Association with the  Brackmills Industrial Estate Business Improvement District (BID)

Date: Thursday, 27 February 2014

Time: 8:00-10:00 am          Cost: Free

Venue: FG Solicitors offices, 2 Deanery Court, Grange Farm, Preston Deanery, Northampton, NN7 2DT

Are you keeping pace with social media in the workplace?

Facebook, Twitter, LinkedIn and other social media networking sites are used every day across the world and have become a useful marketing and brand awareness tool. The downside is that if misused by employees, employers can be exposed to serious legal, commercial and financial risks.

If you wish to explore strategies to minimise the risks to your business, join us to:

  • identify the risks
  • learn how to minimise those risks
  • consider the importance of  clear policies
  • look at how to deal  with social media disciplinary related issues
  • learn how to avoid costly tribunal claims

Cost: Free

This is an exclusive event for companies within the Brackmills Industrial Estate and Northamptonshire Chamber of Commerce members too.

To avoid disappointment reserve your place by email: 

fgmedia@floydgraham.co.uk.

We look forward to welcoming you to our next seminar.

Welcome to our new website!

Megaphone - Hot Off the Press (123rf ref 8981071)We’re delighted to announce the launch of our new website! Following a strategic review, we decided that it was time to replace the old website with a simpler and more advanced system.

We think our new site will be easier to use and supports our move towards a greater online presence.

Let us know what you think, as we would love to hear your feedback!

So what’s new?

We’ve refreshed our brand and completed a total redesign. We’ve tied it all in with our social media activity, as well as improving various areas of the user experience.

We have:

  • Designed an easier route for clients to login and access our services.
  • Crafted a simpler interface and more information about the services we offer.
  • Made it easier to get in touch and find out more about our company.
  • Provided an easy sign up form for our latest updates and newsletter.
  • Built a specific area where you can view and register for our latest seminars.
  • Added our blog to the site under the “News” tab.

The new site includes many more updates and gives us a platform to build on as we aim to grow our online presence. As we grow, we will continue to add new features in the future too – so watch this space!

We know you’re busy, but if you have a minute, take a browse and see what you think of the new site, as we would love to hear your feedback and thoughts.

Please contact should you have any questions – fgmedia@floydgraham.co.uk

FGazette July 2013

FGazette Jul 13 - Monitoring Employees' CommunicationsWelcome to the latest edition of FGazette! The quarterly newsletter of Floyd Graham & Co – Lawyers for today’s employers.

Our third edition of 2013 focuses on technology and communications in the workplace. Click the FGazette image to read more.

If you have any problems viewing this link, please contact us on 01604 871143 or fgmedia@floydgraham.co.uk

Facebook related claims update – balancing freedom of speech with rights to protection against discrimination

Social Media Apps (123ref)SUMMARY: Recently there have been two claims involving postings on Facebook, one in the Employment Appeal Tribunal and one in the High Court. Continue reading

FGazette July 2012

Welcome to the latest edition of FGazette! The quarterly newsletter of Floyd Graham & Co – Lawyers for today’s employers.

Our Summer edition focuses on social media in the workplace, changing terms and conditions and the future of TUPE. Click the FGazette image to read more.

If you have any problems viewing this link, please contact us on 01604 871143 or fgmedia@floydgraham.co.uk

Dismissal for Posting Vulgar Comments About a Colleague on Facebook was Fair

We are now seeing a steady stream of cases concerning employees’ use of social media both in and out of the work environment. The Northern Ireland Industrial Tribunal (the tribunal) has held that an employee who posted obscene comments about a colleague’s promiscuity on his Facebook page was fairly dismissed.  ………… Continue reading