20 February 2019

Rogue staff are the responsibility of employers too, hears employment law conference

Employers have a responsibility to ensure they create a culture within their organisation that calls out and challenges 'rogue' employees if they want to prevent the potential fallout from bad behaviour in the workplace, according to employment law specialist Advocate Elaine Gray, head of Carey Olsen's dispute resolution and litigation practice in Guernsey.

Speaking at the annual Carey Olsen and GTA University Centre (GTA) employment law conference along with fellow employment law specialist Carly Parrott and the Carey Olsen employment team, Elaine said businesses had to have effective policies and procedures in place, which they actively live by, to stop employees becoming rogue employees.

"There are certain steps and measures as an employer that you can readily take to limit the potential damage which might otherwise arise from the actions of a rogue employee," said Elaine.

"For example, if you have somebody in your organisation who has unfettered access to all sensitive information, including that of your clients and staff, you have to ask yourself whether that is completely necessary. You need safeguards in place to protect your company's assets, information and reputation. Essentially, don't let your organisation make it easy for rogue employees to inflict damage."

The conference explored a day in the life of a fictional rouge employee, Roger Roguen, who had spent his morning leaking sensitive company data to local and online news outlets and his lunchtime at home venting his frustrations against his employer on social media. His afternoon included backdating trust documentation, while his evening involved copious amounts of alcohol, discriminatory comments to a junior female colleague and an incident with a beer bottle that resulted in the hospitalisation of a colleague. None of these incidents were authorised or condoned by his employer, some taking place when Roger was not in the workplace, and yet all of them led to serious consequences for the employer. The issue of vicarious liability of an employer for the actions of a rogue employee was therefore brought into sharp focus.

The conference also heard of the real-life example involving supermarket chain Morrisons who suffered a serious data breach in 2014 when a disgruntled internal auditor, Andrew Skelton, leaked the payroll data of nearly 100,000 staff. He was jailed for eight years in 2015, but following a class action brought by 5,518 employees in 2017 Morrisons was later found to be vicariously liable by the High Court for the employee's action because Skelton had been entrusted with the data by Morrisons and his wrongful acts were therefore sufficiently connected to his employment by the supermarket. The High Court ruling was upheld by the Court of Appeal in October last year and it is expected that Morrisons will appeal again.

Carly commented: "The increased digitalistation that we are experiencing in all walks of life has made it easier to disseminate information to a wide audience and that is no different in the workplace. If you have a rogue employee they can inflict severe damage to your organisation very quickly."

She added that whilst employees are an organisation's greatest asset, their activities as employees, including the plethora of information to which they have access combined with the relationships that they develop (both internally and externally), means that they are also an organisation's greatest risk.

The event, which was attended by nearly 100 representatives from Guernsey businesses, included presentations from the Carey Olsen employment team on employment and regulatory issues involving the rogue employee who was ultimately suspended and dismissed on the ground of gross misconduct. Throughout the event, members of the audience were invited to vote on how they would address the various behaviours exhibited by the rogue employee.

The conference concluded with a mock employment tribunal, at which closing submissions were presented on behalf of the employer and employee before a final decision was issued by Peter Woodward, who served as convenor of Guernsey's Employment and Discrimination Tribunal for 17 years. Mr Woodward explained to the audience the various factors that a tribunal would look at when reaching its conclusions. It was found that Roger had been unfairly dismissed on procedural grounds but that the compensatory award would be reduced by a substantial amount to reflect Roger's contributory conduct.

The Carey Olsen employment team which, in addition to Elaine and Carly, included Huw Thomas, Lois Madden, Steven Balmer and Tim Molton, highlighted the serious impact that employees can have on a business and emphasised the importance of not only responding appropriately in the event of suspected misconduct but also the need to be proactive in preventing the misconduct in the first place.