Should an employee be fired for looking for another job?
U.K. HR professional disciplined for posting resumé on LinkedIn
Jan 10, 2012
By Brian Kreissl
Lately I’ve been following the case of John Flexman. He’s the British HR manager suing his former employer for constructive dismissal after it allegedly disciplined him for posting his resumé on LinkedIn, ticking a box stating he was interested in “career opportunities” and including confidential information about the company on his profile.
Flexman argues he did nothing wrong by clicking the “career opportunities” box on LinkedIn and, in fact, mentions several of his colleagues had done the same, including the person who was in charge of the disciplinary proceedings against him.
He also argues the “confidential” information about the company he divulged — including information about how he reduced the organization’s turnover rate — was publicly available in the company’s annual report.
An outdated approach to talent management
While we haven’t really heard the employer’s side of the story and the employment tribunal hasn’t yet rendered its decision, if Flexman’s allegations are to be believed, this case is astounding. If nothing else, it reflects a highly outdated approach to talent management.
Most enlightened employers have moved away from the “how dare you leave” mentality prevalent in the past. Generally, people who move on are no longer viewed as “traitors.”
People leave organizations for all kinds of reasons, and employers are now realizing former employees are a valuable source of talent. Former employees are familiar not only with the organization’s culture and values, but also its products, processes, tools and methodologies.
Depending on the position in question, the type of knowledge possessed by a former employee can often take years for an outsider to acquire. Former employees are a known commodity, and the knowledge and experience they acquire elsewhere can help them and the organization when they return after a stint elsewhere.
Many organizations even establish alumni networks for former employees. These networks allow organizations to keep track of former employees and keep those individuals apprised of current vacancies as they arise.
Another perspective is the truly disengaged or unhappy employee. Why should an employer make it more difficult for such an individual to leave?
Online shoe retailer Zappos takes this one step further by paying new hires to quit if they are unhappy. Their rationale is, “Why keep disengaged employees on the payroll who aren’t a fit with the organization’s culture?”
All of this means there’s little sense alienating someone who is thinking about possibly leaving the organization. It’s one thing if an employee is using company time or resources to look for another job, but if that isn’t the case she should feel free to at least consider other opportunities.
Surely a better strategy would be to keep employees happy and engaged so fewer of them will want to leave. Yet, even an employer of choice will have some voluntary turnover, and that's perfectly healthy and normal in any organization.
Networking using LinkedIn
As several people mentioned when commenting on this case, when setting up a LinkedIn profile including the “career opportunities” box is actually the default option. You have to deliberately deselect it in order for that option not to appear on your profile.
Therefore, it’s dangerous to assume someone who has that box ticked is actively “pounding the pavement” looking for work. And just because you’re interested in hearing about other opportunities doesn’t mean you would necessarily leave your current job. If I hear about a job, I may not personally be interested in it — but I might know someone who would be.
Many people feel there’s little loyalty on the part of employers these days. People understand they could be downsized tomorrow and it’s important for them to look out for their own interests. Therefore, it’s beneficial for them to stay apprised of what’s going on in the job market, even if they’re not actively seeking employment elsewhere.
The legalities of looking for alternate work
According to Kate Hodgkiss, an employment lawyer and partner at the law firm DLA Piper in London, employees cannot be prevented from looking for another job. She also points out employers have the right to protect confidential information by restricting what can be included on social media profiles. Yet, if the information Flexman divulged was publicly available, there shouldn’t be any problem.
I suspect the law in Canada would be similar. Therefore, carefully worded policies and employment agreements can help spell out employees’ rights and obligations in this area.
Brian Kreissl is the managing editor of Consult Carswell. He can be reached at firstname.lastname@example.org. For more information, visit www.consultcarswell.com.
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Brian Kreissl is the product development manager for Thomson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions.