You may have managed to escape one of the most newsworthy cyber attacks this year and for those of you who have not heard of Ashley Madison ("AM"), you may be wondering what all the fuss is about.
"How can one website cause such public furore?" we hear you ask. Well, AM is essentially a website that promotes infidelity and extra-marital dating - the website’s tagline is "Life is short. Have an affair"!
So it came as quite a surprise last month (most probably to its supposed 37 million subscribers) when it was announced that the website had been hacked by a group identifying themselves as the "Impact Team" and information from the website was making its way across cyberspace.
Understandably, panic ensued amongst its subscribers whilst husbands, wives and the media began to trawl through the list of users’ names, addresses and salacious personal details that had been published.
This latest hack has certainly highlighted the vulnerabilities in the security of online websites but this is the least of its users’ concerns. Indeed, the leak may have far more serious consequences for those individuals who have been named and shamed.
Divorce lawyers across the country are anticipating a spike in the number of divorces being issued as affairs are unearthed.
Recent headlines confirmed that Josh Duggar (a well-known Christian campaigner and former star of the television show 19 Kids and Counting) had joined the AM website. He later admitted publicly that he had had an extra-marital affair and is understood to now be in rehab somewhere in the US.
Revelations of this nature are hardly surprising given that the list apparently identifies 15,000 US Government, 219 Vatican and 133 UK government email addresses, and these are only a fraction of the millions of users registered on the site.
It is likely that the personal details of many working professionals are now available online so there is likely to be significant fallout from this leak in the coming weeks and months.
Since the leak, many are trying to piece together the identities of prominent public figures. With the press revelling in news stories such as the recent Lord Sewell indiscretions, the implications of this leak on the professional lives of those concerned are likely to be significant and perhaps in some cases catastrophic.
PICTURE THE SCENE
Given the potential damage this leak could cause, just imagine that you are the CEO of a large listed multinational. You are well-established and revered by your peers for your honesty and integrity. You are married with two children and your family values are central to your public persona with you frequently attending work-related functions with your wife, pictures of which are often printed in the press.
You later find your name, your photo (of you and your wife) and reference to the company you work at splashed across the newspaper on your way to work. The article links you to a variety of proclivities and is accompanied by a "kiss and tell all" story from a lady with whom you had extra-marital relations.
You arrive at work, at which point you receive a call from your HR director. You are suspended pending an investigation as the company is, of course, concerned about the potential damage this scandal has caused to its reputation and is worried that it could affect the company’s share price.
So can you be disciplined for your actions despite you taking part in what were private liaisons?
CONDUCT OUTSIDE WORK
Analogy may be drawn from other issues that have come before the courts/tribunals such as the misuse of social media, football hooliganism or the consumption of illegal substances. These are all examples of conduct issues outside the work place.
As an employer, where can you draw the distinction between an individual’s right to a private life (under Article 8 of the Human Rights Act 1998) and their professional persona and how do you manage the risk?
Case law offers some guidance. An employer will be on firmer ground to take disciplinary action where the conduct concerned has negatively impacted on the reputation of the employer. For example, if the actions of the employee have provoked customer complaints or regulatory scrutiny, these matters will be easier to act upon.
Moreover, an employer who has telegraphed clearly, through policies and the employment contract, conduct it considers to be below the line of acceptability, will find it easier to act. Policies on social media, substance abuse or codes of conduct would be good examples of relevant policies.
Express clauses confirming that an employee may be disciplined or dismissed for bringing his employer into disrepute would also be highly relevant when an employer decides how to act.
SO HOW CAN EMPLOYERS BEST PROTECT THEIR BUSINESS?
The challenge in cases such as these is that each case is very fact specific. Employers should exercise caution, take time to establish the facts and consider whether a sanction is appropriate in the circumstances. Robust disciplinary (and other) policies will help as will appropriate terms dealing with behaviour in the employment contract.
This is particularly important in the case of senior executives with high levels of responsibility and leadership duties.These individuals are often required to set the standard and tone on ethical issues and behaviour.
Employers should check that their service agreements include a clause confirming that the executive’s employment can be terminated summarily (for gross misconduct) if they have seriously brought their employer into disrepute. Normally these clauses are common.
ADVICE FOR EMPLOYEES
Employees must take responsibility for their actions. It is common for individuals to believe that how they behave in their own time should not affect their professional lives – and in the vast majority of cases this is true.
However, this is not always the case. Employees should treat publicly accessible forums and websites with caution and ensure that their comments and behaviour are professional and could not professionally embarrass them if brought to light.
Those that are exposed by the AM "hack" might feel particularly hard done by as discretion in the site was meant to be guaranteed. However, if their actions have brought their employer into disrepute, they could still be vulnerable.
There has already been one high profile job casualty out of this messy affair - Noel Biderman, the founder and CEO of AM and self-styled "King of Infidelity" has stepped down by "mutual agreement". The coming weeks will tell us if others will follow.