The recent Scottish Court of Session decision in the case of Samsung Semiconductor Europe v Docherty [2011] CSOH 32 is a reminder of another unwritten duty that some employees may owe to their employer: An employee does not necessarily have to be a director of the company to be a 'fiduciary', ie in a position where they must put their employer's interests before their own.

In this case, the employee's job was to negotiate with suppliers. He had a 50% stake in the supplier that he recommended to his employer. When this came to light, the employer claimed breach of contract and also breach of fiduciary duty. The court decided that it was not necessary to ask whether he had consciously assumed fiduciary duties. It was enough that he was the sole point of contact with the supplier and others in the employer company would take decisions based on his recommendations. That being the case, all it needed was for there to be a potential conflict of interest (although in this case there was an actual one) for him to be liable, as a fiduciary, to account to his employer for all the profits he had made out of the arrangement – in this case over £300,000.