Confidential information

first_img Comments are closed. Related posts:No related photos. Previous Article Next Article Many employers treat very seriously the issues of garden leave andrestrictive covenants in respect of senior staff, but often overlook the rathermore prosaic protection afforded by the laws relating to confidentialinformation. Although there is an implied duty in common law for individuals tomaintain the confidentiality of almost all the employer’s business informationduring appointment, and a further obligation after employment to maintain theconfidentiality of the employer’s trade secrets and other confidentialinformation, it is a fruitful area on which the employer may build in thecontract of employment, to improve its protection.Confidentiality clausesA confidentiality clause should always be stated to be without prejudice tothe common law duty – that is, one should be careful not to exclude the impliedduty of confidentiality when drafting an express duty. It should also exemptprotected disclosures under the whistleblowing legislation. But an expressconfidentiality clause can flesh out this implied duty and, in practice, makeit much more easy for an employer to protect its confidential information,particularly after the employment has ended. This is because an employer can bequite specific about the circumstances in which information may be used ordisclosed and, crucially, can give examples of the type of information it seeksto protect. This forewarns the employee of the ambit of the confidentialityduty, and makes it much easier for an employer to obtain, if necessary, aninjunction or an order to deliver up specific information.Examples of confidential information should be tailored as closely aspossible to the particular contract of employment in which it is to beinserted. Although employment lawyers will commonly provide boiler-plateexamples of confidential information, it is worth considering adapting them fora particular job. Confidential treatment in practiceEven with the best drafted clause, an employer may inadvertently be dilutinghis protection by not treating confidential information as confidential on adaily basis. Documents containing confidential information should always bemarked as such, and there should be a conscious effort to ensure that suchinformation is not left lying about and is kept securely at all times. If anemployee can show that information, was, in fact, freely left around the officeand not treated as being confidential on a daily basis, it could be very difficultto obtain a legal remedy in respect of any potential breach. Practical steps on terminationApart from drawing the attention of the employee specifically to theconfidentiality obligation in the contracts of employment, an employer may, ifit is suspicious, ask the employee to provide an undertaking – or sometimeseven a sworn statement – that he or she has not taken away any confidentialinformation, or copies. This can be a useful device on which to rely ifevidence is later obtained that the employee is in breach, because the courtswill be much more sympathetic in terms of granting a remedy.By Russell Brimelow Head of the employment group Boodle Hatfield Confidential informationOn 22 Feb 2000 in Personnel Todaylast_img read more