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A game of salary Top Trumps in the office: Higher or Lower?

Senior Associate Solicitor, Alexandra Besnard

The Employment Appeal Tribunal (“EAT”) in the case of Jagex Ltd v McCambridge has considered whether an employee had committed an act of gross misconduct by sharing salary details of a senior executive with colleagues after finding them in a document left by a communal printer.

Background

The Claimant, who was employed by Jagex Ltd (“the Respondent”),found a visa application left uncollected by the communal printer. This document contained salary details of a Senior Vice President, which were not common knowledge within the company. The Claimant left the document by the printer, assuming it would later be collected. Another employee saw the document and left it there, just at the Claimant had done.  Later that day the Claimant discussed the Executive’s salary with another colleague as they were passing.

The salary details soon became known to the rest of the office and a group of employees started to play a game of ‘guess the pay of the executive’, Top Trump or the Price is Right style, with employees shouting out guesses to be told whether the salary was higher or lower. Later that day two employees raised the issue with their managers, with one highlighting the effect on staff morale because there was already a ‘level of disquiet’ about the pay levels.

The document remained by the printer until the Claimant disposed of it in the confidential waste the following day. Whilst the Claimant had no involvement in the lunchtime game and was not one of the people who complained about the Executive’s pay, later that day he was told that an investigation would be conducted into the matter and was invited to a disciplinary hearing the following week. The Claimant was then dismissed without notice, on the basis that he had committed an act of gross misconduct for “the unauthorised disclosure or misuse of confidential information”. The other employees who saw the documents and were involved in the lunchtime game were not disciplined.

The Claimant brought claims for unfair and wrongful dismissal to the Employment Tribunal.

The Law

Where an employee commits an act of gross misconduct, an employer will be entitled to dismiss them summarily, provided that the employers:

  1. believed the employee to be guilty of the misconduct;
  2. had reasonable grounds for believing that the employee was guilty of that misconduct; and
  3. at the stage at which it formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

The employee’s actions may also be so serious that they lead to a fundamental breach of their contractual terms. Employers will usually identify examples of gross misconduct in their disciplinary policy to distinguish them from actions which would only be treated as regular misconduct.

Decision

The Employment Tribunal (ET) held that the Claimant had been unfairly and wrongfully dismissed. It highlighted that salary details were not identified as confidential information in the Claimant’s contract or in any of the Respondent’s policies.  The ET also commented that the Respondent’s treatment was “extraordinarily heavy-handed” as a result of wanting to “make an example of the Claimant”. The Respondent appealed to the EAT, but the EAT agreed with the ET and only remitted the case to the ET to deal with potential contributory fault from the Claimant.

Comment

This case is a reminder to employers to clearly identify what it considers confidential information in their contract of employment if they are keen to keep salaries under wraps, as it is unlikely that this would be implied in the contract.  Employers should also have in place protocols for handling confidential information. On another note, this is also a useful reminder about “scapegoating” one employee, when others are also involved in the issue.  This difference of treatment, as well as the lack of reasonableness, could make a dismissal unfair.

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