Your employees have employment contracts with your business. It acts as an agreement between parties. It documents the working conditions and requirements in and around your business, as well as employee rights, daily responsibilities, and their common duties within their role. Our expert Employment Law Solicitor, Nikki Sharpe, answers key points in relation to breach of confidentiality below:

They are the terms of the contract. But what happens if your employee breaches them?

The employer should try to settle the matter with you informally, but they can sue you for damages in the same way you can sue them.

Your employer would normally use a county court for a breach of contract claim. The only way your employer would be able to make an application to an Industrial Tribunal is in response to a breach of contract claim that you have made.

Damages are only awarded for financial loss if you don’t give enough notice for example. They might be for the extra cost of hiring temporary staff to do your work, or for lost revenue.

What is a Breach of Confidentiality?

An employment contract can be broken or breached by either the employer or employee not acting as agreed under the contract.

As an employer you may want to protect intellectual property rights, trade secrets, competition from existing clients (ie a clause within a contract stating that employees cannot use client lists to entice them away during or after the termination of employment).

Furthermore, as an employer, you may wish to add to the contract that on leaving employees cannot entice staff to leave and also if they have created an idea or item that the rights of such stay with you as an employer.  There is a mutual duty of confidentiality and trust between employer and employee.

Examples of a Breach of Confidentiality

A breach of confidentiality happens when an employee, worker or contractor shares or uses certain types of information that could damage an employers business, its clients, or its employees.

Information is classified into four types which include:

• Confidential information – information that’s protected because you’ve told your employees it’s confidential or it’s obvious that it shouldn’t be used
• Employee’s skill or knowledge – information belonging to the employee that allows them to do their job and failure of the employee to carry out and perform the contract adequately
• Public information – information that can’t be protected
• Trade secrets – information that’s protected during and after employment even if you don’t have a confidentiality clause in your contract

What Can I Do to Protect My Business?

Going forwards it is a good idea to ensure that your contracts have confidentiality clauses concerning trade secrets, competition and restrictive covenants operating during the term of the employment and post restrictive clauses to cover a period of time after the employment ceases.

Consider, too, whether all employees should have access to client information and databases and restrict this access if possible. Our specialist employment Solicitor, Nikki Sharpe, can review your employment contracts for you.

What Should I Do If A Breach of Confidentiality Has Occurred?

If you are an employer and the employee breaches confidentiality whilst employed then you would need to follow your usual disciplinary process to investigate the evidence available.   If your employee has left and has breached confidentiality then you may want to write to them in the first instance forewarning them that further action will result in legal proceedings and potentially an injunction to prevent the breach from occurring.

If you are an employee and you feel your employer has breached confidentiality you may have a claim for breach of the General Data Protection Regulations 2018 and pursue a claim against them. For further assistance, you can contact the Information Commissioners Office and lodge a complaint.  Furthermore, if the breach has caused distress then you may consider a human rights claim under Article 8 of the Human Rights Act 1998.  Any claim would need to be lodged within a year of the complaint and usually in the civil courts.

What Are the Employee Consequences?

Termination of Employment

So if you are faced with breaches of confidentially this could lead to termination of your employment.  Your employers would need to investigate, take any mitigation (supporting evidence you provide) into account before any dismissal.

A Civil Lawsuit

If you have made a breach of confidentiality and are no longer employed then you may be facing legal action in the civil courts and/or an injunction and should seek legal assistance immediately

Damaged Reputation

This may lead to a defamation claim for slander or libel which is a very complex and expensive area of law.

How Can Best Solicitors Help?

If you as an employee or employer are faced with potential or real breaches of contract which involve confidentiality then you need to seek legal advice and assistance.   Furthermore don’t wait until a breach occurs.  Contact Best Solicitors now who would be happy to talk through any issues you may have regarding breach of contract, how to prevent and deal with the same.  Best Solicitors can assist in reviewing contracts, recommending any changes and/or implementing the same.

Get in touch today on 0114 3583134 or contact us via our contact page.