Mitigating misconduct risks from сonflict-prone employees

Imagine this scenario: an employee is upset over a reprimand issued by the company. As a revenge, the employee discloses the company’s confidential information. 

This employer’s nightmare is a reality for the UK supermarket chain Morrisons. Its employee, offended by being reprimanded for appearing at work under the influence of drugs, leaked the financial data of around 100,000 staff members, causing millions in damages to the company.

The employee was brought to justice, but this did not address the consequences of the data disclosure or fully restore the company's reputation. Apparently, the situation could have been avoided if the employee’s access to sensitive data had been restricted. However, how would he have continued to work? And would such a restriction be lawful? 

That's why we're discussing what tools are at the employers' disposal to prevent employee misconduct in the event of a conflict, as well as the distinction between employer protection and violations of employee rights.

I. Preparatory Measures

Before proceeding to consider measures of protection in the event of a conflict, it’s worth outlining a few preparatory steps that can help minimize risks in advance.

Clarifying internal rules and violations. Legislation doesn’t cover all the practical issues that may arise in the workplace. For example, the employer can independently define what constitutes confidential information, set ethical codes, or introduce contractual clauses on non-disclosure and non-compete obligations. This opportunity should not be overlooked, proving that an employee disclosed confidential information becomes much more difficult without a clearly defined and documented understanding between the parties of what such information entails. Establishing internal policies will not only help prevent violations but will also make it easier to record, investigate, and prove them if they do occur.

Application of special legal regimes. Depending on the nature of the company’s activities, the law may allow for additional mechanisms to respond in conflict situations. For instance, under the Diia.City regime, employers may conclude employment agreements in the form of a contract (art. 16 of the Law of Ukraine on Stimulating the Development of Digital Economy in Ukraine). This allows them to include procedures for temporarily suspending an employee during internal investigations contrary to the procedure established by the legislation (art. 21 of the Labour Code of Ukraine).

II. Tools for Protecting the Employer’s Rights from Employee Misconduct

After addressing preparatory measures, let’s focus on the key question: how can an employer prevent a conflict-prone employee from causing harm – without violating that employee’s rights? Depending on the specific situation and the employer’s needs, current legislation offers several options.

Granting the employee leave. Leave is a classic way to temporarily remove an employee from their duties and restrict access to corporate resources – for example, during an internal investigation.

In most cases, leave can only be granted with the employee’s consent, except when the employee has not used their annual leave for two consecutive years. In such cases, the employer may, within the limits of an adopted vacation schedule, issue a leave order without the employee’s request. Unpaid leave is only possible with the employee’s consent.

Leave usually allows the parties to reflect on the situation. A mutually agreed paid leave can signal to the employee that they are valued by the company, while also making it clear that certain behaviors, circumstances, or conditions require reconsideration.

Changing job function or transferring to another position. An employee may be transferred to another position, and in the case of organizational changes in production or labour processes (such as workforce optimization), their job duties may be modified – provided the employee consents to the change. If it is not possible to maintain the previous working conditions and the employee refuses the proposed changes, the employment may be terminated with severance pay (art. 32 of the Labour Code of Ukraine).

This approach is typically most appropriate when it is necessary to limit interaction between employees in order to prevent further escalation of a conflict. For example, a complainant can be reassigned so they are no longer subordinate to the manager they have lodged a complaint against.

Suspension from work. As a general rule, suspension may be applied without the employee’s consent, but only in specific cases – such as appearing at work under the influence of alcohol, drugs, or toxic substances; refusing or evading mandatory medical examinations, training, safety or fire safety instructions and knowledge checks; or during an internal investigation conducted by an employer that is classified as a state-owned enterprise of strategic importance to the national economy or security and/or a critical infrastructure operator. During the period of suspension, the employee is not entitled to salary (art. 46 of the Labour Code of Ukraine).

However, legislation also provides for other cases where suspension may be applied. For instance, the suspension of the head of a collegial or sole executive body of a limited or additional liability company (such as a director, president, or board member) may be carried out in accordance with the company’s founding documents by granting such authority to another person (p. 12 art. 39 of the Law of Ukraine on Limited Liability Companies and Additional Liability Companies). 

Suspension is also allowed in joint-stock companies – for example, the supervisory board may suspend the director if their actions violate the rights of shareholders or the company itself, pending a decision by the general meeting on termination of their powers (art. 84 of the Law of Ukraine on Joint-Stock Companies).

Downtime. If there are no organizational or technical conditions necessary to perform work, or in cases of force majeure or other circumstances that lead to a stoppage of work, an employee may be released from their duties due to declared downtime. Downtime can be applied regardless of the employee’s consent and must be compensated at a rate of at least two-thirds of the employee’s salary. At the employer’s discretion, full salary may be maintained during this period (art. 34 of the Labour Code of Ukraine). 

Termination by Mutual Agreement. If a conflict cannot be resolved while maintaining the employment relationship, a balanced tool for protecting the employer’s interests taking the employee’s position into account may be the termination by mutual agreement. This allows the parties to voluntarily terminate the employment relationship, with the employee receiving additional compensation, provided that certain terms are observed (such as non-disclosure and/or non-compete obligations) (art. 36 of the Labour Code of Ukraine).

Below is a table summarizing typical protection measures.

Abroad, other instruments are also applicable, although not all of them are applicable in Ukraine.

For example, in the United States, Canada, and the United Kingdom, it is common to apply administrative leave, where an employee is placed on mandatory leave (usually paid), for example for the duration of an internal investigation.

In the United Kingdom, Australia, and New Zealand, another common practice is garden leave – a form of paid leave given during the notice period before termination. It is used both to relieve the employee of their duties and to maintain the enforceability of non-disclosure and non-compete clauses.

It’s crucial to keep in mind that these foreign practices may conflict with Ukrainian labour legislation. As noted earlier, in most cases, employee consent is required for any kind of leave under national law.

In Ukraine, the range of tools for relieving employees of their duties may also be expanded in the future. For example, the revised version of the draft Labour Code of Ukraine, as proposed by the Ministry of Economy of Ukraine, suggests expanding the grounds for suspending an employee from work, in particular in cases stipulated by a collective agreement (art. 67 of the Draft Labour Code of Ukraine (as amended by the Ministry of Economy of Ukraine on 27.12.2024).

Cautionary Note

While safeguarding the company's interests is important, it is equally important to stay within the bounds of the law, act with humanity, and consider the actual effectiveness of the chosen measures. Violations of labour law, such as wrongful termination, unlawful fines, or coercing an employee to resign, not only carry serious risks but may also result in administrative (art. 41 of the Code of Administrative Offences of Ukraine) or even criminal (art. 172 of the Criminal Code of Ukraine) liability.

Even lawful yet overly forceful measures can lead to unwanted consequences and cause reputational harm. For instance, in 2025, Meta won a case against a former employee, prohibiting her from distributing her book Careless People, which contained statements raising concerns about Facebook’s practices. The result was counterproductive since the book gained even more attention. 

That’s why when choosing protective measures, both legality and effectiveness should be taken into account.

Published: Lexology, 31 August 2025

Authors: Vitalii Meliankov, Vladyslav Ivanov