Brothers in arms…..or conflict of interest?


Like many people, I am interested by the lessons that business can learn from sport in terms of the synergies and parallels and how an event or situation in sport can manifest itself and how the same thing could happen in the commercial world and how it would be dealt with.

So, a recent Rugby Union story that barely hit the back pages got me thinking. The facts – there are 2 brothers – Luke and Tom Arscott – Tom plays for Sale and Luke plays for Bristol in the Premiership. Tom has just been dismissed by his club, who is his employer – because it was alleged that the evening before the 2 teams met in match a few weeks ago, the 2 brothers met up at the team Hotel and the allegation is that they exchanged team information.

What is the synergy in business. There must be countless examples of either brothers, sisters or even married or unmarried couples who work in similar industries or sectors and work for businesses who are in direct competition. This isn’t a case of 2 people in a relationship who work for the same business but people who have a relationship and work in businesses that compete against each other. You can hardly stop it – or can you – but somewhere, the relationship would have to be declared due to the potential conflict of interest.

Given the amount of time that we spend at work, it is inevitable that relations are going to develop and whilst much is written about relationships between people in the same business, the same can happen when 2 people meet at a Trade Show or Exhibition and develop a relationship and the businesses compete. Or, similarly, a person may have a relationship with someone who works for a supplier or a contractor ……again, giving rise to a conflict of interest.

There are different ways in which this could manifest and the most extreme for instance would be where the husband works in New Product Development at Ford and his wife works in New Product Development at Vauxhall. It’s possible but unlikely and in that situation both husband and wife would have to declare the situation to their employer and various safeguards would have to be in place in the form of NDAs to protect highly commercially sensitive data.
But these situations require to be managed and controlled because the conflict could come to light in terms of tendering for the same piece of business, pricing and procurement terms, marketing strategy, acquisitions, recruitment of key people, entry into new markets etc.

How do you deal with these situations? Firstly, in most contracts of employment, there will be clauses where there is a requirement for any potential conflict of interest to be declared and secondly, all contracts of employment should have robust clauses in respect of confidential information and the need to protect a Company’s sensitive commercial data.

In the event that there was either a breach of the rules regarding the declaration of a conflict of interest or leak of commercial data, there is little doubt that most businesses would be justified in taking the view that it was a gross misconduct dismissible offence. But these matters would be so difficult to prove – who can witness a husband and wife conversation over the dinner table or even in bed?

Needless to say, it would be very easy to prove if there was an e-mail exchange but it’s unlikely that a situation would be as clear cut as that. And in the case of the Arscott brothers, how can you prove that they discussed team selection as is alleged and were not chatting about the family Christmas. We know that Tom was suspended pending an investigation and was subsequently dismissed and it would be reasonable to expect any business to manage a situation in a similar way if there was such an issue.

We also know that Employment law and criminal law operate differently in terms of burden of proof. Criminal law requires proof beyond all reasonable doubt and can’t rely on circumstantial evidence to achieve a conviction but Employment law is based on the principle that the employer is able to make a decision based on having carried out an independent investigation and having acted reasonably in all the circumstances.

The specific details around the Luke and Tom case and what was said are not in the public domain but they highlight how a similar situation could very easily manifest itself in the world of business.

Last year we were all struck by the brotherly bond of Alistair and Jonny Brownlee, our Triathlon champions who competed against each other but in their case, the bond was a lot less complicated.

Adrian Berwick offers HR support to business and if you want advice on any people issues related to confidential information or conflict of interest, call 07885 714771 or contact