No doubt an enormous amount of reciprocal finger-pointing going on at recruitment group Hays at the moment following its inadvertently sending 800 people at the Royal Bank of Scotland the pay details of some 3,000 contractors and temps on the Bank’s books.
As reported in financial services website hereisthecitynews.com this week, RBS is said with masterful understatement to be “disappointed”. Apparently the Bank is “taking action to address this issue”. This does of course beg the question for Hays of exactly what action you can take to put the genie back in the bottle when you have sent 3,000 sets of remuneration details to 800 erroneous recipients at one of your biggest clients. One likely consequence is clear, however, i.e. an almost irresistible pressure on Hays to dismiss the employee responsible.
That makes two assumptions. First, that you can actually find him – this is obviously one of those hot-and-cold moments when the life of a recluse in the Shetland Isles begins to hold a certain allure. Second, that you can establish with the necessary degree of certainty that the fault lay with one individual at relatively junior level, rather than someone embarrassingly senior who really ought to have checked it. But even assuming that you can identify the employee whose carelessness alone caused the leak, and however understandable Hays’ need for a human sacrifice to appease RBS, does that one mistaken attachment to an email really warrant dismissal? From fat-fingered traders buying instead of selling or misplacing decimal points to trainee lawyers inadvertently sending privileged advice to the other side, surely anyone can make an innocent error once, even if the consequence of that is to put a coach and four through the guiding principles of the Data Protection Act?
Legally, probably yes. The Employment Tribunals have long been reluctant to sanction the dismissal of employees with good previous records who have just made an innocent mistake. Fair dismissal on competence grounds for such a mistake will generally require the consequences of the error to be actually or potentially dangerous to life or limb on a significant scale – airline pilots, train drivers, etc., and “mere” financial or credibility loss is unlikely to qualify. It may be different of course if the employee is already on a warning for the same sort of thing, for example, or if he had received specific instructions to check the attachment before pushing the button, and had not done so. Absent that, any dismissal by Hays or any other employer in such circumstances may well be found unfair.
Do remember, however, that that would not necessarily make the claim worth pursuing, not least because the employee could reasonably anticipate a sizeable deduction by the Tribunal for his contributory fault, whether or not the Employment Judge held shares in Hays.