One of my senior employees recently got married and her new husband works for our closest competitor. I am extremely concerned that she may – willingly or by mistake – disclose confidential information to him. Have we got any legal right to dismiss her or, at least, move her into a new role that doesn’t compromise our most valuable intelligence?
Dismissing an employee simply because her husband works for a competitor will almost certainly land you with a claim for unfair dismissal and unlawful direct discrimination.
Dismissing employees in anticipation that they may breach their duty of confidentiality might be considered fair under the Employment Rights Act 1996. Section 98(2) of the Act provides some leeway if the action is taken for “some other substantial reason”.
However, it will depend on the facts of the case – including whether you treated all employees in this manner and would be risky: leaving your business open to allegations of marriage and sex discrimination.
An employment tribunal appeal in a similar case – Dunn v Institute of Cemetery and Crematorium Management – ruled that it was illegal for employers to discriminate against someone not only because they were married, but because they were married to a particular person.
Treating someone less favourably than another because of what the Equality Act 2010 deems to be a “protected characteristic” amounts to discrimination: marriage is one of those characteristics and dismissing a person for that reason would certainly be considered to be less favourable treatment.
Likewise, moving your employee into a new role would leave you open to a claim for constructive dismissal as well as discrimination.
In short, your best option is to trust her to remain professional. Should your employee fail in that regard, deal with the situation when it arises.
Laura Daniels is a pupil barrister at Kings Chambers
Pay battles of the sexes
With workplace equality becoming increasingly important, I am concerned about a handful of serious pay gaps between my male and female staff. However, my business is under serious financial pressure. Can I undertake a review of equality in pay with a view to downgrading – rather than increasing – salaries to ensure that they match up?
Female employees who are paid less than male employees for the same work can bring equal pay claims at an employment tribunal, so you are right to be concerned.
However, closing the pay gap by unilaterally reducing pay for male staff won’t resolve the problem. In fact, it could even make things worse – by further exposing your business to potential claims of discrimination, breach of contract and even constructive dismissal.
A better solution would be to perform a complete review of all staff salaries to understand what pay differences there are, and why this is the case.
Perform a financial review as well as an equal pay audit, to understand the impact of any differences in salary and any potential changes.
If, after the review, you decide to make changes, ensure any new structure is transparent and based on unbiased reasoning which does not unfairly affect people of the same gender, race, religion or belief, sexual orientation, disability or age, compared with others.
Keep staff fully informed and expressly agree new written terms with them where possible.
Resources on equal pay developed by the Equality and Human Rights Commission (www.equalityhumanrights.com) may be useful to you when performing equal pay audits in the future.
Emma Dickinson is an assistant solicitor at Simpson Millar, a law firm
Perils of ‘cyberholes’
I am concerned about the increasing challenges of managing social media risks and fear that our standard employment contracts are littered with “cyber holes” – especially when it comes to restrictive covenants, such as preventing staff from copying valuable contacts from our Twitter and LinkedIn accounts. Can we carry out a widespread review of existing contracts and insert social media clauses? And, if so, what would they look like?
This problem isn’t limited to social media. It’s easy for a member of staff to just download client lists on to a USB stick or send them to a web-based email account.
You should make sure that your contracts of employment forbid removal of company data without the express consent of a director.
Ideally, you should also include clear restrictive covenants preventing (ex-) employees from soliciting your existing customers with whom they’ve had contact for, say, six months after departure.
You already have some legal protection if an employee deliberately downloads, photocopies or memorises a list of your clients for the purpose of competing. A court will often grant you an injunction (and damages) even without a restrictive covenant, unless the information is already in the public domain.
But it’s very difficult to protect the identity of contacts from Twitter and LinkedIn accounts. By their very nature, they are in the public domain, and anybody (including your competitors) can see them.
One of the downsides of shouting into the “Twittersphere” is that people hear you shout – you cannot keep the information confidential.
If your client list is confidential, there is only one solution: don’t replicate it on Twitter or LinkedIn.
Daniel Barnett is a barrister at Outer Temple