Employee Confidentiality

Confidential Information and Employees

In the course of their employment with you, your employees will necessarily have had access to, or generated, much confidential information, especially when they are in senior positions. To what extent can you restrict its use during and after employment?

The law implies a duty on your employees to keep certain information confidential (see below). However, in order to reinforce the importance of confidentiality you should also include a confidentiality clause in the employment contract stating in detail what information you regard as confidential. This is most important as implied confidentiality terms in an employment contract on the employee's part will generally only last as long as the job.

In broad terms, the position is that during employment, an employee must observe implied and express obligations of confidentiality. After employment, any implied obligation will normally only prevent disclosure of secret processes or trade secrets. Hence it is necessary to deal specifically with the protection of other confidential information in an employment contract.

However, care and professional advice should be taken in drafting a clause that imposes restrictions on the employee after his employment has ended. This is particularly the case where the restriction might limit the employee's ability to work within his field of expertise. Any such restriction should be reasonable, otherwise it may be unenforceable.