Another week, another news story related to Donald Trump albeit, this time, definitely not ‘fake news’. In summary, an unknown individual leaked a diplomatic cable from Sir Kim Darroch, the UK Ambassador to the USA, in which Sir Kim called President Trump “insecure” and “incompetent”.
Rather than focus on the political side of things, this story is interesting because it reflects a common fear of many employers, namely an employee leaking highly confidential information to hurt them. In this case, it is very likely that a civil service or staff member leaked the information to hurt Sir Kim’s position (and, in that sense, they were ultimately successful!)
Let’s have a quick look at the employment law impact of a similar situation. So, within our hypothetical example, we have Rule Britannia Mugs Ltd, who sell British branded mugs to other countries. Their biggest customer is White House Trading PLC in the USA, who love mugs displaying pictures of red telephone boxes, London buses and union flags! However, an employee leaks an email from the Finance Director within which the Director states ‘we needn’t worry about quality, Americans will buy any old tat’ and it becomes viral on social media. What happens next?
Well, if it was leaked accidentally (i.e. the employee accidentally forwarded the wrong email to a staff member at White House Trading PLC), they are likely to face disciplinary action but this will take into account all the circumstances including whether they have a clean record, their length of service and whether there was any ill-intent.
But, if as may be likely, the email was leaked on purpose, perhaps because of a personal dislike of the Finance Director and to try and get them fired, it is very likely to constitute a gross misconduct dismissal unless exceptional circumstances apply. Why?
Well, the leak is very likely to hurt the trading stance between the two companies which, in turn, puts employee jobs and the company’s financial stability at grave risk. If the employee acted with ill-intent (even if they are repentant later on), it is likely to justify the more extreme measure of a gross misconduct dismissal (this being the equivalent of a straight red card rather than two bookings (read: warnings)).
So what can Rule Britannia Mugs Ltd do to limit the risk of confidential information leakage? Well, firstly, the company’s contracts and/or Handbook can make clear that any leaking of confidential information constitutes gross misconduct and, in the case of truly sensitive information, could seek to limit exposure by keeping the circle of recipients small and/or limiting retention of data (and password protecting it).
In the current climate, as above, it is perhaps ironic that Sir Kim’s comments were, in fact, proven right by President Trump’s follow-up actions. So, unfortunately, for Sir Kim, his is a slightly rare situation in which an individual has to leave a position due to being proven entirely correct!