Publish and be damned – employees who breach agreements

What can you do if one of your former employees decides to castigate your company online? You need to know the legal remedies that are available. Our article will show you what can be done to repair the damage and stop it happening again.

Imagine that you are an employer and find out that one of your employees, or former employees is busy on social media making inappropriate, disparaging or defamatory comments about your company, its products, services or employees.

Although social media have been with us for some considerable time (LinkedIn 2003, Facebook 2004, Twitter 2006), it is surprising how many people who use it have little idea of the implications surrounding the information that they post.

Effectively, every time they post something, they are publishing it, bringing it into the public domain and posts made on social media sites are subject to the same laws that apply to the mainstream media. Many users do not realise this and find out to their cost that they are liable for what they tweet or post, no matter the circumstances under which it was written, whether that be the influence of emotional stress or alcohol.

As might be imagined, where the relationship between employer and employee has become strained or has broken down irrevocably, there is a greater risk of the employee, in high dudgeon, saying exactly what they think of their employer (or colleagues) on social media.

The ease with which comments can be made will, in this case, often make matters worse.

Because such comments are fuelled by emotion, they are less likely to be considered or even remotely accurate. The desire will be to hurt or damage and in such instances, the truth is often the first casualty. Sometimes, particular members of staff will be singled out, especially if they have played a part in disciplinary or dismissal procedures.

Surprisingly, it is not always employees from the lower levels of the organisation who commit such indiscretions. Members of senior management have used social media to post derogatory comments about fellow managers, in the full knowledge that the subjects of their diatribe followed them on Twitter or Facebook.

Many companies, aware of the possibility of the misuse of social media in disciplinary or dismissal circumstances, have sought to use settlement agreements, which bind employees to prevent such post-termination behaviour. These can often be effective in ensuring that current and former employees behave themselves but what happens when the employee decides to ignore the conditions of the settlement agreement?

In a recent case, RSM International v Harrison, it was established that an injunction could be granted against an employee if they breached the terms of their settlement agreement. RSM International applied for an injunction against Harrison, a former employee, who had been making disparaging and derogatory statements including allegations of dishonesty, malpractice, corrupt practices and interference with his career. All of these allegations could have proved very damaging to RSM’s hard-earned reputation.

Following legal advice and with the prospect of a severance payment for doing so, Harrison had signed a standard settlement agreement with his employers which forbade derogatory comments and stipulated that all matters should remain confidential. A specific clause of the agreement said that if such comments were made, or confidentiality breached, the employer would be entitled to an injunction.

RSM made a request to Harrsion to stop making the comments but he refused to do so. Having no alternative, RSM issued a claim in the High Court for an injunction, which was granted.

Protecting the business

Prevention is, as always, better than cure, and if the employer can stop such comments being posted in the first place, they will have nipped a potential problem in the bud. For employees who are still with the company, this can be achieved by the use of restrictive covenants in employment contracts or a specifically worded settlement agreement if the employee is leaving the business. This will give the employer the opportunity to apply for an injunction if the employee chooses to ignore their side of the bargain.

What employers can do

Many employers, to save time, re-use the same settlement agreement. If this is the case, the agreement should be checked and revised to ensure that it is up to date and takes into account developments in the business and society in general. This includes social media, the rapid development of which has taken many companies by surprise.

A basic search to check whether the employee is active on social media can be carried out. This will reveal whether the employer is making any derogatory comments about the employer or colleagues. Although some social media sites allow pseudonyms, others are now insisting that real names are used. Regular checks should be carried out after the settlement agreement has been agreed and signed. Negative comments may well constitute a breach of the settlement agreement.

If this search reveals that derogatory or inappropriate comments have been made, the employer should ask the employee to remove them.

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