An employee will not necessarily be in breach of contract or commit gross misconduct simply because he does something that his employer finds embarrassing. In Jagex Ltd v McCambridge the EAT upheld a finding that an employer wrongfully dismissed an employee for revealing details of a senior manager's pay.
Mr McCambridge found a document on a shared printer that revealed the pay of one of the employer's senior managers. He pointed the document out to one colleague and mentioned it to two others. Many other employees had also seen the document and it was widely discussed. Mr McCambridge was later called into a disciplinary meeting and dismissed for gross misconduct, being the "unauthorised disclosure or misuse of confidential information".
The employment tribunal found that the dismissal was both wrongful and unfair. The employee's contract required him not to disclose confidential information to a third party. However, the contract did not specify that salary information was regarded as confidential, the document itself had not been marked as confidential in line with internal procedures and the information had not been disclosed outside the organisation. In any event the matter was not serious and could not be categorised as gross misconduct.
The EAT dismissed the employer's appeal against the wrongful dismissal finding. The employee would only be in breach of his contract if he had (i) misused or disclosed to a third party (ii) confidential information and (iii) the information was not in the public domain other than by breach of contract. There was no universal answer to whether salary details are confidential but given that the contract was silent on the point, and other employees felt free to discuss them, the tribunal was entitled to conclude that it was not. Even if the information was confidential, the tribunal was also entitled to find that it had come into the public domain as it had been left on a shared printer for over 24 hours and many employees had seen it. Common sense suggested that a disclosure to a third party was intended to refer to disclosures to those outside the organisation.
Finally, if there had been a breach of contract, it was not one that was serious. The fact that a senior employee had inadvertently allowed details of his salary to become known, and that this was embarrassing for the company, did not make the employee guilty of gross misconduct. However, the tribunal would have to decide whether the employee had contributed to his dismissal when deciding appropriate compensation – issues of contributory fault can come into play even if an employee has not committed gross misconduct.
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