When is a breach not a breach (of confidentiality.)
At myHRdept we spend a lot of time helping employers protect their confidential information and commercial interests through carefully worded employment contract clauses. But in the case of Knowles Vs Elldon House Nursing Home, the employer was found wanting when it dismissed Knowles for making a copy of a staff rota. As the Home nurses its £15K compensation injury, wel take the opportunity to review what went wrong.
Employers have a right to protect their own Confidential Information, Intellectual Property and commercial interests. The normal method of protection is to have suitable employment contract clauses and in some cases separate policies. Well worded clauses can enable the employer to take disciplinary action against an errant employee, or in the case of an employee who has left and is, for example, poaching clients or staff, to obtain a legal injunction to stop that employee from acting in breach of post restrictive terms, or put more simply, terms that continue to operate after the employee has left employment.
To be effective though, such terms need to be drafted in such a way as to clearly define the risk or the required limitation on behaviour, and go no further than they need to genuinely protect the legitimate commercial interests of the employer. So expressly requiring specialist Company Acme Specialist Widgets' Sales Director not to undertake employment with their arch rival and neighbour Incorporated Specialist Widgets for a year may be fine, but requiring that same individual not to undertake employment in the much wider non-specialist widget market would be an unfair restriction on his right to earn a living and, as the restriction is not just for the ‘Specialist’ market, would almost certainly be deemed to be too wide a restriction and therefore not enforceable.
In this case an employee, Knowles, of Elldon House Nursing Home, was dismissed for photocopying what the Home deemed to be Confidential Information. This transpired to be a rota. The Company had suspicions that the employee was submitting copies to the Care Inspectorate to allege that staffing levels were unsafe, however they did not share this allegation with him. Pretty much everything they could have got wrong from this point they did get wrong:
A rota that was accessible by all cannot be regarded as Confidential Information (and in any case should have been defined as confidential, either in the employment contract or a policy or better still, both.)
Elldon House did not put their suspicions to Knowles re his intention to share this with an external body (and so he had no opportunity to defend himself)
When dismissed he was not given the right of Appeal, thus a clear breach of the ACAS code of practice
Had Knowles actually been planning to share information with the Care Inspectorate in order to bring attention to alleged unsafe staffing levels, his disclosure may have been regarded as a ‘qualifying disclosure made in the public interest’ and as such would also have been protected from detriment. In the event the errors described above were sufficient for him to win his unfair dismissal case.
The Tribunal found that the dismissal was unfair and furthermore in their failure to follow the ACAS Code uplifted his award by 25%. He received in all £15,341.
Learning points? Pretty straight forward really:
Always conduct an investigation and ensure employees understand the allegations and have an opportunity to defend themselves
Check that an actual breach of contract or policy has occurred, and if it has, that the clauses are well drafted and well understood by the employees concerned
Always allow employees to appeal against dismissal, and ensure the appeal is handled by a different, normally more senior, person.
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