The deactivation of Donald Trump’s Twitter account for 11 minutes by one of Twitter’s customer service contractors on their last day of work understandably generated a lot of headlines, given the president’s love of tweeting. The contractor’s actions led to Twitter conducting an internal review and promising that it had “implemented safeguards to prevent this from happening again”. This incident highlights the significant impact 'rogue' employees can have on their employers’ businesses when they cause mischief on their last day of employment. What steps can employers take to minimise the risk of departing employees harming their businesses, and do they have any recourse against ex-employees?
Whenever a decision has been taken to terminate employment it will be important that the employee’s departure goes as smoothly as possible for the business. When the decision to terminate is the employer’s it will have greater control of how this process is managed. In situations where the employee is entitled to notice there will often be scope to terminate the employment with immediate effect and make a payment in lieu of notice. In this way, once the decision to dismiss has been made steps can be taken very swiftly to prevent the employee from damaging the business. Such measures could include terminating the employee’s IT access and supervising their departure from the office.
A potentially more difficult situation to control is where the employee resigns. If it is appropriate to do so the employer may decide to place the employee on garden leave for some, if not all, of their notice period. While the employee will remain continue to receive their salary and other benefits the employer will not be obliged to provide them with work or allow them access to the office, clients and other employees. This may be especially appropriate where the employee is in a senior position or, like the Twitter contractor, in a sensitive position where there can be greater opportunity to damage the business. Ideally there should be an express power in the employee’s contract for the employer to do this. Again, access to the employer’s IT system could be blocked or significantly limited and keeping the employee out of the business in this way should again limit any opportunity the employee may have to damage the employer.
But what happens when there is work that the employee needs to complete meaning garden leave is not the best option? In this situation, thought could be still be given to restricting the employee’s IT access to the bare essentials and possibly removing them from more sensitive or high-profile duties. Alternatively, the employee could be incentivised to behave appropriately during their notice period. If a settlement agreement is in place then there could be an express obligation for the employee to continue to comply with the terms of their employment contract until they leave and the compensation payment could be conditional on them doing so. With the compensation payment typically being made after the employee’s departure, this will provide scope for the employer to withhold payment if the employee has misbehaved.
Even without a settlement agreement in place, the employer may have the opportunity to withhold certain payments it would otherwise owe to the employee. Although the employer will not lawfully be able to retain outstanding salary, even in cases of gross misconduct, it will (provided that there is clear wording in the employment contract) have scope to withhold notice pay, contractual holiday pay and bonuses, and/or to demand repayment of these amounts should it discover that the employee has committed a fundamental breach of contract.
Prevention is better than cure and, especially where employees are in sensitive roles, immediate thought should be given as to what steps can be taken to protect the employer’s business and minimise the risk of reputational or financial harm.
Nicholas Le Riche is an employment partner at Bircham Dyson Bell
