COT3 and Social Media

[ecalid]

Hi guys!

Just a Quick one, can your previous employer take screenshots of your facebook posts and withhold them for collateral to enforce the COT3 agreement?

I completely understand the need for confidentiality in the agreements but feel that withholding screenshots is a bit much?

Thanks in advance guys!

[Amethyst]

Are they directly relevant to the employment issue that led to the COT3 being needed?

When you say withholding do you mean they haven't shown them to the employee or that they have refused to destroy them after settlement is agreed?

[ecalid]

Hi Amethyst

Basicly the ex employee wrote something on facebook that they have taken out of context, post-acceptance of the COT3 terms.

After asking the respondent to provide them with a date for the figure being paid, was sent an email by their representatives; They have said that the respondent has copies of certain posts from the employees facebook (post-acceptance) and will use them to enforce the terms of the agreement to recover damages if any additional posts should appear.

[Amethyst]

Ahh something that could be deemed a breach of the COT3 terms?

Make the FB private for starters, and don't post anything about the ex-employer or the settlement on there ( or anywhere else ) at all as presumably the settlement agreement has quite onerous terms on confidentiality / non-disclosure ?

Ula for you xx

[ecalid]

Thank you Amethyst

Yes thats pretty much it.

The employee doesn't enjoy the fact that the respondent is controlling their data even though they are not employed.

It is the employees understanding that the GDPR allows employers to withhold information that is relevant to any existing contracts and would like clarification on this if possible.

[Amethyst]

I think it's the 'withhold' word confusing me - do you mean 'retain' ? If the ex-employee asked his ex-employer to delete all their data under GDPR, then they wouldn't be able to do so - employment records, tax/NI etc, the settlement agreement and disciplinary info,etc.

Information must not be kept for longer than is necessary.

While there is no set period of time set out within the GDPR, some records must be kept for a certain period of time in accordance with other legislation. For example, HMRC require payroll records to be kept for three years from the end of the tax year that they relate to.

Article 5(1)(e) says:

“1. Personal data shall be:

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’)”

It sounds like theres a risk of getting into an argument about the employer having found and saved possible breaches of the settlement agreement putting the settlement at risk rather than actually concentrating on obtaining the settlement and complying with the agreement. I'd say let it go.

TBH if they don't like it, then go to tribunal rather than accepting settlement on the terms negotiated and have a clean break.

[ULA]

The employer has a right to ensure that the ex-employee does not breach the settlement agreement. The same applies the vice versa. If the employer has found out through public domain information i.e. Facebook that breaches of the settlement agreement have been made by the ex-employee then are entitled to take screenshots of the evidence and use that to request the ex-employee complies with the agreement or take the matter further.

I would suggest the ex-employer completely stops any posts on any social media platform in regard to their former employer and the details of any settlement reached.

Sorry to sound so blunt.