Newspaper article The Journal (Newcastle, England)

Confidential Issues Must Be Clear in Any Contract

Newspaper article The Journal (Newcastle, England)

Confidential Issues Must Be Clear in Any Contract

Article excerpt

Byline: By Chris Maddock

Hell hath no fury like an ex-employee scorned. So how can employers protect themselves? Chris Maddock, associate in the employment group at commercial law firm Robert Muckle LLP, explains.

Former Home Secretary Charles Clarke has been embarrassing the Government in interviews, lambasting it and ex-colleagues over some fundamental issues.

Mr Clarke is no longer a minister but his disclosures to the media have been damaging, highlighting the issue of confidentiality both during and after termination of employment.

But what can be done in the context of an ordinary employer/ employee relationship to prevent damaging disclosures being made?

Many contracts of employment ( from those of very junior staff up to board directors ( should have clear clauses explaining what information is deemed by the employer to be confidential.

These clauses help to protect the employer and, by specifying what is deemed confidential, can make clear that disclosure of such information is forbidden and could lead the employer to seek damages against the individual in question.

As well as an express clause in a contract, there is an implied duty of confidentiality during employment. This requires employees to conduct themselves with fidelity and good faith and is defined as the 'duty of trust and confidence'.

This is an essential part of any employment relationship. This obligation is part of all contracts of employment and employment relationships, no matter how senior employees are. In Mr Clarke's case, it could be argued that given his senior position as an ex-cabinet minister, his position was more akin to that of a director or senior manager or employee and provided for an additional duty of good faith, namely a fiduciary duty.

In terms of the employer protecting its position, the only information which can be protected by implied duty of confidentiality after employment termination is in respect of trade secrets. …

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