Q&As

Where a confidentiality obligation in an employee’s contract of employment is made subject to a whistleblowing carve-out, to what extent will the confidentiality restriction be enforceable against the employee post-employment if they disclose confidential information that would otherwise be required to be disclosed by law?

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Produced in partnership with Peter Edwards of Devereux Chambers
Published on: 19 December 2019
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Questions of this nature are very difficult to answer without sight of the actual employment contract. Like post-termination restrictions (restrictive covenants), Confidentiality clauses are construed on a narrow basis given that they impose restrictions on basic freedoms. Hence, the actual wording of the clause is critical and needs to be carefully and forensically analysed.

Whether or not there is an express contractual clause, employees are always under an implied duty not to disclose Confidential information belonging to their employer. In certain circumstances, such as information concerning trade secrets, the duty may persist after the employment relationship has ended (whether by resignation or termination).

The duty of confidentiality was always subject to a common law ‘public interest exception’ even prior to the coming into force of the Public Interest Disclosure Act 1998 (PIDA

Peter Edwards
Peter Edwards

Devereux Chambers

Peter Edwards is one of the few senior practitioners with a specialism and a thriving practice in both of the complimentary fields of employment law and personal injury. "Noted for cases at the intersection of personal injury and employment law" by Legal 500 2017, he has extensive experience of dealing with ' and cross-examining ' medical experts and is at a particular advantage when dealing with cases involving both areas of law (for example, stress-at-work/workplace injury cases in the High Court and Disability Discrimination claims in the ET and at Appellate-level). He is ranked in both major Directories in personal injury and employment: "He's excellent. If it's a difficult case he'll handle it with absolute aplomb." ' Chambers UK 2017. "He is able to give to provide accurate, focused and succinct advice." ' Legal 500. 'His attention to detail and ability to get to the crux of a case are second to none.' 'Decisive, down-to-earth and robust.' -Chambers UK 2018.

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Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Confidentiality definition
What does Confidentiality mean?

Duty imposed in conduct whereby an individual and firm must keep clients' matters confidential.

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