Please note the Law may have changed since the publication of article.
Ok. So you’ve employed a developer. He makes a pig’s ear of the development work you hired him to do. Your client pulls out claiming shoddy security and sues you for negligence. You mention to the developer in question that you are thoroughly underwhelmed by his contribution to the mess you find yourself in.
If you follow a fair procedure, you may well be able to dismiss him for lack of ability. However it’s fairly unusual for employers to go a step further and sue their employee for negligence or breach of contract. The point is though that there is no reason in law why you should not.
That being said there are practical reasons why this tends not to happen. Developers, whether employees or contractors, seldom work in isolation and generally work as part of a team. In other words, evidentially it’s often hard to pin the blame on a particular person. IT demands a high degree of innovation. If your employees (or contractors for that matter) are scared witless at the prospect of being sued simply for doing their job, you won’t keep them for very long. The few that you do retain will be very very careful, but their creativity will suffer as a result.
If a litigation culture is encouraged, you will drive developers into the arms of professional indemnity insurers, and you’ll simply force up your costs when you may do better taking out insurance yourself. There is little wisdom in suing someone who is unable to pay the award and legal costs even if you do win.
If you don’t have systems in place to prevent rogue developers, then in the same way that Barings Bank failed to stop rogue trader Nick Leason, you will be failing in your own job. Don’t just pass the buck.
© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.