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15 March 2023

Confidentiality – is there any such thing?

2 mins

In recent weeks, the media has reported on journalist Isabel Oakeshott leaking to the Daily Telegraph, nearly 100,000 messages between Matt Hancock and other government officials.

Matt Hancock allegedly said that it was a breach of trust, and potentially could be a breach of confidentiality.

So, in the context of an employment relationship, what does this mean for employers? 

Confidential information is a key asset for businesses, and in some cases may amount to trade secrets. If misused by an employee for the benefit of, for example, a competing business, or leaked in the public domain, confidential information could cause reputational and/or commercial damage to that business. This is why it is always key to have clear definitions of what amounts to confidential information in an employment contract.

Some companies go further and enter into a separate non-disclosure agreement (NDA). However, in light of the above are they worth the paper they are written on? 

The answer is yes, whether a clause is in a contract of employment or set out in the NDA, it gives a level of protection to the company to sue an employee who seeks to disclose information that is protected by confidentiality. As an employer, do not be afraid to pursue the employee for those breaches. 

Ensure that you clearly define what amounts to your confidential information, and make it clear to employees that if they potentially breach the clause then they may be subject to disciplinary action. 

Depending on the circumstances of the breach, the employer may seek injunctive relief. 

The question then arises as to whether or not public interest trumps the duty of confidentiality.  If the organisation is in the public sector, then it is not surprising that such leaks are happening, especially if there is a public interest element.

What the above news story has highlighted, is that senior staff in businesses (and those specifically in the public sector) must think, and take a moment before they set out their personal comments in any emails, WhatsApp messages, text messages or any other media. Because one day, an employee and/or somebody else may release those messages in the public domain, which could cause irreparable damage to that individual and/or the business.

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