During employment an employee owes his employer a strict duty to maintain the secrecy of the employer’s confidential information. Once the employment has terminated the employer’s confidential information may still be protected by the implied duty of fidelity which continues even though the relationship has ended. However only certain types of highly confidential information continue to be protected and there is a wealth of case law determining what may or may not be confidential information in certain circumstances. The leading case is the 1986 Court of Appeal judgement in Faccenda Chicken v Fowler.
How will a duty of confidentiality arise?
A recipient of information must realise that the information shared with them must be treated sensitively and confidentially. The general receipt of information is not enough to create a duty of confidentiality.
What makes information confidential?
In order for information to be classified as confidential there must be an element of secrecy to it. Therefore information which is in the public domain cannot be confidential. The type of information which could be confidential is known as being a trade secret, for example customer lists, sales figures, drawings, computer access codes, research papers. The extent is not exhaustive and the information may be of a technical, commercial or even personal nature. General “know-how” or knowledge which anyone in a certain trade or profession would know, regardless of employer (such as, in HR, interviewing skills and management methods) is not confidential information. However where a person has information because he works for a particular employer, that may well be confidential (for example, in HR, planned promotions, company-specific KPIs etc).
How do you protect confidential information?
During employment the employer should ensure that employees are informed of their duty in respect of confidential information. Throughout employment the employee is expected to act with honesty. The employee is not permitted to copy or memorise confidential documents for use after the contract ends. Once the contract has ended, the employer will rely on post termination duties owed by the employee to the former employer if these are specified in the contract of employment. The safest method is to specify what is to be treated as confidential information, in the employees’ employment contracts.
Remedies for breach of confidence
If confidential information is disclosed by an employee during the course of employment, this will amount to a breach of contract. If disclosed afterwards, this may be a breach of a specific contractual term, or of common law duties. Armed with evidence of unlawful disclosure and proof of actual or potential damage to the business, an employer can apply for an injunction, ask for delivery/destruction of the documents and/or damages.
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