18 March 2013

The risk of having undefined confidentiality clauses!

It is clear that employers can discipline and even dismiss employers who breach clearly defined confidentiality clauses and policies. However what is the position if the dismissed employee complains that the confidentiality policy was not sufficiently defined as to make it clear as to what information was confidential and what was not? In this scenario, does a potentially fair dismissal become unfair?

This was the question considered by the EAT in Hill v Governing Body of Great Tey Primary School ("the School").

Background  

The Claimant, Ms Hill, was a mid-day dinner lady who informed a parent that her child had been tied to railings and whipped across the legs by other pupils ("the Incident"). As a result of the Incident Ms Hill was suspended by the School. During her suspension she complained to the press and told them about the Incident. 

Ms Hill was dismissed for breaching the School's confidentiality policy and for bringing them into disrepute.

She brought claims in the Employment Tribunal (ET) for unfair dismissal and whistleblowing on public interest grounds.

The decisions

The ET held Ms Hill: 

• 1. succeeded in her unfair dismissal claim on procedural grounds, the whistleblowing claim failed and
• 2. was guilty of 80% contributory fault.

The compensation was reduced to a token amount and Ms Hill appealed to the EAT.

The EAT overturned the ET's decision and remitted the case for a rehearing. The EAT criticised the ET on the following basis: 

• 1. Before deciding to reduce any compensatory sum the tribunal should have looked at whether Ms Hill would have been dismissed in any event. When dealing with this issue the ET should have considered her long service and good record, instead of assuming that she would have been dismissed and then looking at whether that dismissal would have been fair.
• 2. The ET failed to consider the employee's right to freedom of expression under the European Convention of Human Rights. Having found that the reason for dismissal was not a protected disclosure, it had not then clearly addressed whether there had been a breach of Ms Hill's right to freedom of expression.

Under the circumstances the contributory fault could not stand for two reasons: 

• 1. Although the School had a confidentiality policy, this policy did not set out which information should be treated as confidential, and who was entitled to have the information kept confidential and
• 2. The School has not achieved an adequate balance between the employee's right to freedom of expression and her duty of confidentiality.

Conclusion

This case illustrates the risk of having insufficiently defined confidentiality clauses and policies; it may prevent employers from relying on it as a fair reason for dismissal. The tribunals seem to have made their position clear on the subject an employee cannot be liable for conduct which they do not know is wrong.