1. Serious breaches of confidentiality can potentially constitute gross misconduct so, in some circumstances, a summary dismissal is justifiable
  2. Any dismissal must, however, still be fair, just and reasonable
  3. Dismissal for a breach of confidentiality is not for a specified fair reason in the legislation but falls instead into the separate category of for “some other substantial reason”
  4. A “substantial reason” is undefined but tribunals provide employers with a degree of discretion in this area and common reasons include (a) conflicts of interest (b) a reputational risk (c) a breakdown in trust and confidence 
  5. If allegations are proven, then an employee may have breached the implied duty of fidelity and good faith
  6. There may be further breaches of express contractual obligations – check employment contract/service agreement
  7. Hard (not flimsy) evidence is required so a detailed investigation must always be carried out
  8. An employer must consider whether to suspend an employee pending an investigation – must have reasonable and proper cause to suspend. Care should be taken though because there is an inherent risk of a claim that the act of suspension will seriously damage the relationship of trust and confidence
  9. There may also be an express contractual right to suspend in the employment contract/service agreement – so check too
  10. Check also there are no circumstances at play which mean an employer cannot seek to protect the release of confidential information, for example, whistleblowing, the reporting of criminal or regulatory offences, disclosing information for the purposes of seeking tax, medical or other professional advice – these sort of disclosures are permitted by law
  11. On the basis of the relevant evidence, an employer can also potentially seek an undertaking from an employee that there will not be any further disclosures
  12. Applications for injunctions and claims for damages are also possible but often inadvisable at too early a stage in proceedings