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At Court of Session this week an employer, Peebles Media Group, are bringing a case against their former employee, Patricia Reilly.

The claim, brought before one of Scotland’s highest court, claims that Ms Reilly was at fault when she paid invoices, which turned out to be fraudulent, leading to the company losing around £200,000.

It is a rare thing, an employer suing their employee. This is because ordinary folks are unlikely to have the money to pay any damages awarded against them. The cost of the legal action and the fact that they may never receive any damages means that in most cases employers would not go down this route.

However, in this case, Peebles Media Group must have some inclination that Mrs Reilly would be able to pay the damages, if they were awarded against her.  It would not be worth the cost of the action otherwise.

So how will a Court approach such a case?

In this case, from the limited information available, the Court are likely to consider the following:

  • How fraudulent the emails actually looked on the face of it. The question being would an ordinary competent person doing Ms Reilly’s job have realised the emails were not real.
  • What training Ms Reilly received regarding fraudulent emails and requests for payment. Fraudsters are becoming increasingly sophisticated in the way they can front e-mails and make them look real to extort money illegally, so there is an expectation that an employee in this role would have been provided training regarding this.
  • What the internal processes were for paying invoices and whether these were followed. There is some suggestion in case reports that Mrs Reilly’s line manager signed off some of the payments. If this is found as a fact, this certainly removes part of the culpability of Mrs Reilly. Similarly, if she followed the required processes, this will go in her favour.

Will this set a precedent of employees being sued by their employer?

I would hope that this would not set a precedent of employers suing their employees. The main reason being, as already said, most employees would simply not have the money to pay any damages awarded against them. The same reason why most women do not bring an action against the individual harasser in a sexual harassment claim (bringing it against their employer instead) or why we don’t see more civil actions for rape like that of the cases against footballers David Goodwillie and David Robertson. Unless the person is independently wealthy, these actions rarely lead to any damages actually being paid to winning party.

However, my view is that this type of action only adds to an already blame ridden culture that is in the UK’s workplaces. Employees will be less likely to use their initiative, will be more likely to see their job in a box and fail to see the wider picture. This has real problems, particularly in areas such as healthcare and medicine where a joined up multidisciplinary approach is needed.

There is also a caution for employers in this tale. Cybercrime, hacking and fraud are ever more prevalent. They are a real risk to business. In my view, it is about time that employers took responsibility for this and make sure that appropriate systems of working are in place, that staff are sufficiently trained and, perhaps most importantly, that the business has appropriate insurance to full back on when the worst happens.

Blaming employees, and solely employees, is rarely the full story.

Blog by Jillian Merchant, Employment Solicitor

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