Game of Thrones is arguably the biggest television series of all time with each season eagerly awaited. As such, it would have caused its broadcast network (HBO) some consternation when four brand new episodes were leaked online in early April before the episodes were due to air on TV. This raises the question of confidentiality and how many companies will need to protect their valuable confidential company information to remain competitive and successful in their industries.
The main options open to HBO in this scenario, and any employer in general, are as follows:
- Learning points on how the company can prevent the same from happening in the future.
- Commence an investigative process and consider possible disciplinary sanction up to and including dismissal;
Prevention Better than the Cure
Employees of HBO will no doubt have very robust confidentiality clauses in their employment contracts which prohibit them from disclosing any information relating to the company and/or their products. Such confidentiality clauses act as a deterrent and mean that employees are less likely to disclose confidential information or data. In the event that an employee does disclose confidential information then an employer will have a clear policy in place to justify taking disciplinary measures up to and including dismissal. Having signed agreements for confidentiality is absolutely key in these cases, as the most basic response from any employee would be to plead ignorance of any wrongdoing “I didn’t know that I couldn’t”, “Nobody told me” etc.
A strong signed agreement will negate any such response and clearly show that the employee signed their understanding of a confidentiality agreement. If such clauses are outlined in the Employee Handbook, then it is again hugely important that an employer gets signed understanding of the company handbook returned from each employee. Ensuring the most up to date IT and Confidentiality policies available are in place should also be paramount if security of information is key to the business. Reviewing these policies regularly and updating them in light of any technological or relevant advancement should also be a proactive approach taken by the company. Remaining successful in any business area should always involve being proactive to change, instead of being reactive once an issue has arose.
Another avenue which employers should be interested in exploring is issuing “reminders” to employees in advance of any upcoming area likely to have risk of confidentiality issue. A lot can be said for simply holding a meeting with employees to advise them of what lays ahead and how the company envisions risks coming from this. Reminding such employees of the agreements they have made and how serious the company would view any breach of this would go as far as any method in protecting against a disclosure of private information. It would also be a good approach during this meeting for the company to flex their muscle in advising how robust their IT and Confidentiality policies are, which may act as a deterrent to any employee considering a breach.
With these preventative steps, and a fact finding investigation completed beforehand, the employer can easily proceed to disciplinary procedures against the employee. Depending on the scale of the confidentiality breach and circumstances involved, such disciplinary proceedings may be viewed as Gross Misconduct in which case the employee should be suspended in light of the formal disciplinary proceedings. Previous precedent of how the company has dealt with confidentiality breaches would also have to be considered and followed again when applicable or possible.
Employees who have resigned and are working out their notice period, as well as those who are in the final days of a fixed term position are naturally those most likely to be involved in a secure information breach. While this may seem unfair to suggest, it is one of the most common queries we HR Consultants receive with regards to confidentiality and resignation.
For simple and obvious reasons such employees are the most “at risk” to be involved as they are in a period of transition and the trust involved in the employment relationship can potentially be affected by an employee having one foot out the door. One way to approach this potential could be to discuss such concern informally at the acceptance of resignation meeting, or if the employer has heard through the grape vine that an employee is likely to breach confidentiality, a short letter could be issued to them after an exit interview to remind them of the agreement they had made. As the employment agreement ends once the person leaves the company, such agreements can be a lot more difficult to pursue as a matter of civil law. Therefore, a short letter reminding the exiting employee of the agreement, but also suggesting legal proceedings would have to be taken against the person should a breach come to light after they have left, would also go a long way to protecting the valuable information of the company, and ensuring the trust involved in the employment relationship holds strong both during and after the employer/employee relationship.
In addition, an employer may consider exhausting any Garden Leave clauses whereby the employee would not be required to attend for work for the duration of their notice period. Garden leave allows an employer to ensure the employment relationship subsists, thus ensuring the confidentiality agreements remain actionable, whilst an employee is out of work and cannot cause any further damage.
If you have any queries in respect of the above article then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50.