One of my employees has just sent the company’s entire salary list to all our staff. This has caused uproar among my workforce. I accept entirely that it was accidental, but I still want to dismiss him. Will that be legally fair?
One preliminary question first – did the employee have any prior history of such carelessness or any relevant disciplinary record? If so, the answer to your question is probably yes; if not, potentially no.
This may sound an odd conclusion given the damage that the disclosure could do to your company. You may have grievances brought by employees upset about the disclosure of their own salary, or, in fact, more upset about what the disclosure of others’ salaries says about their own remuneration in comparison. The Information Commissioner could properly conclude that this was not corporate compliance with the principles of the Data Protection Act 1998 relating to personal data. Your corporate reputation, both as employer of choice and as trustworthy custodian of client data, could take a significant knock.
Nonetheless, the employment tribunals have long been reluctant to allow the fair dismissal of employees with previous good records who have just made an innocent mistake, whether it is a fat-fingered trader misplacing a zero or a young solicitor inadvertently sending privileged advice to the other side. A fair dismissal on competence grounds for a first mistake will generally require the consequences of the error to be actually or potentially dangerous to life or limb on a significant scale – airline pilots, train drivers, etc – and “mere” financial or credibility loss is unlikely to qualify. This is particularly the case if the employee in question owns up to the error and is prepared to make an appropriate apology for it to all those affected.
It is entirely possible, in theory, for an employer to sue an employee for negligence and/or breach of contract when things like this happen. The argument runs that the employee is under an implied or express duty to carry out his role with reasonable care and skill, a duty that does not include the inadvertent but large-scale release of confidential information. Therefore, your employee is in breach of that duty that he owes you, and so technically exposed to legal action.
This may be very tempting, especially because you do not have to dismiss the employee in order to bring this sort of claim, but it is very rarely worth the effort. Your losses will be hard to quantify. To the extent that they arise out of previously concealed inequalities in your pay structure which are unlawful under the Equality Act 2010, a court would see your costs in addressing those discrepancies as your problem, rather than your employee’s. As a rule, the genuinely claimable losses arising out of an incident of this sort are either so great that the employee has no hope of meeting them, or so small that the claim is not worth the cost and potentially adverse PR inherent in bringing it.
You are, therefore, quite entitled to give your employee a suitable written disciplinary rocket and to mark your displeasure through any discretionary bonus arrangement, but a dismissal could well be found unfair. Even if it is understood that a sizeable contributory fault deduction might be made from the employee’s compensation were he or she dismissed unfairly, it may be best to write this one off to experience and hope that an appropriate degree of embarrassment leads your employee to try to make a new start elsewhere in the best interests of all concerned.
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David Whincup, Squire Sanders Hammonds, London
