(1) Salary information is not necessarily confidential; and (2) Contributory conduct in unfair dismissal cases does not need to constitute gross misconduct to result in a reduction of the compensatory award


The Employment Appeal Tribunal has agreed with an Employment Tribunal that an employee who was dismissed for gross misconduct after sharing salary information of a senior employee with another colleague was unfairly dismissed (Jagex Limited v McCambridge

Facts 

The Claimant had worked for the company for 6 years with an unblemished record.  He came upon the salary information of a senior executive which had been left by a shared printer and shared it with another colleague. The document containing this information remained there for over 24 hours uncollected by the senior employee whose salary information it contained.  Subsequently this information was widely shared among other employees of the company. 

The company dismissed the Claimant the day after holding a disciplinary hearing for gross misconduct where it found that sharing the salary information was a significant breach of trust and confidence between the employee and the company. 

(1) Salary information is not necessarily confidential

The Employment Tribunal (Tribunal) found both procedural and substantive failings in the company's decision to dismiss the Claimant for gross misconduct.  It found that "no reasonable employer would class discussion of a colleague's salary as gross misconduct." There was no express contractual term which stipulated that salary information was confidential information, so the salary information was not confidential.  

The Employment Appeal Tribunal held that the Tribunal had been entitled to reach the decision that it did and there was no good reason to interfere with the decision. 

(2) Reduction of compensatory award for contributory conduct

The Tribunal ruled that for a reduction to be made for contributory fault, the employer would have to prove that the Claimant had committed an act of gross misconduct, with the result that a reduction could not be made in this case for contributory fault. 

However, the Employment Appeal Tribunal overturned the Tribunal's decision that the Claimant's conduct had to amount to gross misconduct for a deduction to be made for contributory fault.  The correct test is to consider whether the conduct was culpable, blameworthy, foolish or similar, which includes conduct that falls short of gross misconduct and need not necessarily amount to a breach of contract.  

Comment

Many companies consider salary information to be sensitive information which ought to be treated as confidential. This case is an important reminder to employers to review and include an express and unambiguous contractual term to state that salary information is confidential and that sharing it without the company's consent will lead to disciplinary action. That the employment contract did not include an express term to that effect, in spite of having a lengthy confidentiality clause, hindered the company's efforts to conclude that there was a breach of contract and, ultimately, led to a finding of unfair dismissal.

Key contact

Sungjin Park

Sungjin Park

Knowledge Lawyer, Employment
London

View profile