Insider threats, as they are known, or internal threats formed by employees who have access to valuable assets of the organisation to which they belong, are not exceptional but are often underestimated. “The increasing digitalisation is also making it easier for employees to secretly forward all kinds of information such as customer lists, price lists or quotes to a private e-mail address. It is a known phenomenon for employees to secretly copy such information in the weeks before they resign, for example, because they are starting their own business or to curry favour with their new employer. This can cause great damage to an organisation, financially or otherwise,” notes Filip Tilleman, a lawyer at Tilleman – Van Hoogenbemt. What legal remedies are available to an employer if one of its employees deliberately or accidentally causes damage?
“There’s every reason to explicitly include even self-evident things, like a ban on theft, in the policy.” (Filip Tilleman)
“Employment legislation contains some general obligations for the employee, but nothing prevents an employer from providing additional clauses in the contract of employment, for example concerning confidentiality. In the financial sector, the employment contract can stipulate that employees must report any debts. It’s important that there is transparent communication about this.”
He also warns against proportionality. “Such clauses do need to be relevant to the job. This obligation to report debts is justifiable in the employment contract of a bank employee. In a dockworker’s employment contract, however, it isn’t.”
A non-competition clause is another option. “This is where an employer effectively prohibits an employee from performing the same role for a competitor after the end of the employment contract. Even though employers often doubt the usefulness of such a clause, it does makes sense. It’s often an ‘invisible” protection: an employee stays with their employer because of the financial consequences of breaching such a clause,” says Tilleman.
Alongside specific provisions in the employment contract, there are also employment regulations in which sanctions can be included. “Not only that, the employer may only impose a sanction if it is specified in the company employment regulations. It’s also advisable to draw up clear rules on the use of media and technology. You can also clarify in that, for example, the purposes for which employer verification is possible.”
“If abuse or breaches do occur, it’s important that an employer takes immediate and decisive action. This is not only a clear signal to the perpetrator, but also to the other employees,” emphasises Tilleman.
“Suppose an employee is caught stealing. If you don’t take decisive action as an employer, that’s as good as saying that theft is okay. This leads to harmful dynamics within the company.” You can respond by issuing a warning or by sending a notice of default, by imposing a sanction such as suspension with loss of salary, dismissal with severance pay or summary dismissal.
“From a legal standpoint, it is important that you document any sanction in writing. Employers are sometimes reluctant to immediately respond formally, especially if it’s an unintentional error. This is understandable in order not to damage the trust relationship. But if it gets out of hand – which is unpredictable – you will have insufficient evidence. For example, if a judge has to decide whether a summary dismissal was justified, they will always check whether there are clear guidelines or rules. If there aren’t any, the court may find that the employee couldn’t have known that certain conduct or certain action was impermissible. But transparency and clarity are important from an HR point of view too.
There’s every reason to explicitly include even self-evident things, like a ban on theft, in the policy. Grey areas – such as whether or not employees are allowed to take discarded equipment with them – often give rise to discussions. Clear rules and clear communication are in everyone’s interest. After all, the ultimate goal is to have a good employment relationship,” says Tilleman.
Source: this interview was written by Hilde Vereecken and appeared in HR.Square – 204 – May/June 2021 pp. 58-59.