Employment and Immigration Law Update - Disclosure of pay not gross misconduct


18 December 2019

The Employment Appeal Tribunal (EAT) has confirmed that a disclosure of a senior employee’s pay details was not gross misconduct.

Jagex Ltd v McCambridge UKEAT/0041/19

Facts

The claimant in this case had found a document on a photocopier that included details of one of the senior executive’s salary. He mentioned it to a colleague, and it subsequently became the topic of more widespread gossip within the business. The claimant was one of three staff who were disciplined for disclosing the salary information, although he was the only one dismissed for gross misconduct. An employment tribunal upheld his claim for unfair dismissal, finding that disclosure of the salary details did not breach the contractual confidentiality provisions and did not amount to gross misconduct. The dismissal was both procedurally and substantively unfair. The tribunal declined to award either a Polkey reduction, to reflect the likelihood that the claimant would still have been dismissed had a fair procedure been followed, or any deduction for contributory fault. The company appealed to the EAT.

EAT decision

The EAT dismissed the respondent’s appeal against the finding of unfair dismissal. It agreed with the tribunal’s finding that the disclosure of the salary details did not amount to gross misconduct. The EAT held that for salary details to be covered by a contractual confidentiality clause, it needs to be expressly specified within the clause; it is not information which is automatically deemed to be confidential.

The EAT upheld the tribunal’s decision not to make any Polkey reduction, but it did uphold the employer’s appeal against the tribunal’s decision not to make any deduction for contributory fault. Conduct does not have to amount to gross misconduct in order for it to be taken into account when deciding on contributory fault; the tribunal had applied too high a threshold. It should have considered whether the claimant’s conduct was blameworthy or culpable in order to determine whether a deduction was appropriate. The case was remitted for the employment tribunal to consider making a deduction for contributory conduct.

Consequences

This case provides a reminder to employers to consider carefully what information they consider to be confidential. It should not be assumed that salary details will automatically be covered by the implied duty of confidentiality during the employment relationship. If employers want to ensure that such information is kept confidential, it would be advisable to make express provision for this in the employment contract.

This article is from the December 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.