Former Employer is demanding I sign a confidentiality deed

[Deuxbiers]

I have received a letter from a solicitor acting on behalf of my former employer asking me to sign a deed to say I shall:

1. comply with a clause in my contract of employment referring to Confidential Information

2. If requested, confirm I have complied with the undertaking set-forth in the deed.

I am concerned at the threatening tone of the letter and I wish to confirm if they have a legal right to ask me to sign the deed.

 

[The Byre]

Throw it in file 13.

IF what you say is true, that sounds to me like a unilateral change of terms of employment. And you don't even work there any more! Absolute nonsense! File 13 it - or keep it as a memento to laugh at.

 

[fisicx]

Laugh at their temerity, chuck it in the bin and get on with life.

 

[Newchodge]

Write back requiring that they sign a blank cheque made payable to you.

 

[Deuxbiers]

Thanks everyone for the sanity check. I thought I was going mad!! I do still have some concerns that there is some legal basis for which they can demand this.

The letter makes several unsubstantiated claims regarding my behaviour during the last few days of my employment. The letter also contains several inaccurate and false statements, including alluding to me now working for a competitor and sharing company confidential information with my new employer. All of which is untrue.

My new employer does not operate in the same sector as my former employer and is not in competition. I have not shared any confidential information or data with them from my former employer. My former employer does not know the nature of work of my new employer and has no evidence to suggest I have passed any confidential information to them.

The letter is quite threatening, particularly the last paragraph which expresses my employer regards this as a serious matter, and failure to respond within the time limit given will lead to further unspecified action.

 

[Mr D]

What can old employer do? Sack you?

 

[Deuxbiers]

He's very paranoid about company IP. He also has money to throw at problems and he sees me as a 'problem'! He's had solicitors involved with 6 of my former colleagues who have been suspended. One was suspended in Jan this year and as far as I know is still on suspension!! All this time my boss has been using solicitors to help him with investigating them (not cheap at around £500-800 per hour!)

 

[fisicx]

I'd make sure you new employers know about the letter just in case your old boss decides to take action.

 

[Mr D]

He's very paranoid about company IP. He also has money to throw at problems and he sees me as a 'problem'! He's had solicitors involved with 6 of my former colleagues who have been suspended. One was suspended in Jan this year and as far as I know is still on suspension!! All this time my boss has been using solicitors to help him with investigating them (not cheap at around £500-800 per hour!)

Sounds like the sort of boss willing to throw money away. Ah to be suspended from January....

 

[The Byre]

(not cheap at around £500-800 per hour!)

That explains why they are prepared to go along with that nonsense!

 

[paulears]

Stable door is firmly closed. If he didn't sort it while you were employed, then you have no duty to cooperate now. If the confidential material is pointless or useless to you, why not ask the consideration he is willing to pay for your compliance and then sign it and take the money?

 

[cjd]

You have absolutely no obligation to sign anything, so don't. The contract you signed is your only obligation and if your ex-employer has a problem with that it's entirely his problem.

 

[Recruitment&HR]

Hello

Thanks for this info. I do have a copy of some correspondence of the office asking for the best dates to visit to learn the jobs. Would that be enough? Just feels a little off.

I have received a letter from a solicitor acting on behalf of my former employer asking me to sign a deed to say I shall:

1. comply with a clause in my contract of employment referring to Confidential Information

2. If requested, confirm I have complied with the undertaking set-forth in the deed.

I am concerned at the threatening tone of the letter and I wish to confirm if they have a legal right to ask me to sign the deed.

Happens regularly if a former employer believes there is a risk of a former employee breaching the confidentiality clause of the employment contract.

The letter you describe merely states that you are aware of the confidentiality clause and informs you that, should the employer have reason to believe you breached it, you will confirm that you did not.

It's up to you whether you sign it or not. However, should the employer ever instigate legal action, be that warranted or not, you will have a "black mark" in the eyes of a judge for not having signed it (if you have nothing to hide, then there is no reason to re-confirm that you are aware of you contractual restrictions).

Having said that, I've yet to meet an employer who takes legal action of confidentiality issues without having cast iron proof of a breach. It's expensive and a waste of time and money without proof.

 

[The Byre]

you will have a "black mark" in the eyes of a judge for not having signed it (if you have nothing to hide, then there is no reason to re-confirm that you are aware of you contractual restrictions).

Absolute nonsense! I can already hear legal professionals snorting with indignation at that statement!

Are you sure you are an HR professional?

 

[Recruitment&HR]

Absolute nonsense!

Are you sure you are an HR professional?

It is not "absolute nonsense". Any judge will look at whether each party behaved reasonable. Not signing a confirmatory letter that merely sets your legal obligation under contract is plain and simple not reasonable.

It would be an entirely different kettle of fish if the ex-employer would attempt to impose new confidentiality restrictions that were not covered in the employment contract. This would be deemed unreasonable by a judge.

As for your personal insult - I'll ignore that generally but yes of course I am. In fact I've just dealt with a similar case last week.

 

[Newchodge]

Happens regularly if a former employer believes there is a risk of a former employee breaching the confidentiality clause of the employment contract.

The letter you describe merely states that you are aware of the confidentiality clause and informs you that, should the employer have reason to believe you breached it, you will confirm that you did not.

It's up to you whether you sign it or not. However, should the employer ever instigate legal action, be that warranted or not, you will have a "black mark" in the eyes of a judge for not having signed it (if you have nothing to hide, then there is no reason to re-confirm that you are aware of you contractual restrictions).

Having said that, I've yet to meet an employer who takes legal action of confidentiality issues without having cast iron proof of a breach. It's expensive and a waste of time and money without proof.

You what? I have yet to meet an employment judge who would look favourably on legal bullying by an employer against an employee who has committed no wrong.

 

[Recruitment&HR]

You what? I have yet to meet an employment judge who would look favourably on legal bullying by an employer against an employee who has committed no wrong.

Small issue with your assessment - it would no be an employment judge.

And again, it's not "legal bullying" - it's a letter asking the former employer to re-affirm what he/she had already signed in their contract of employment.

 

[Newchodge]

The letter you describe merely states that you are aware of the confidentiality clause and informs you that, should the employer have reason to believe you breached it, you will confirm that you did not.

Could you put that into coherent English please? How can this letter notify the ex employee of what the ex employee will do? Please get a grip.

 

[fisicx]

And again, it's not "legal bullying" - it's a letter asking the former employer to re-affirm what he/she had already signed in their contract of employment.

If they pay me for performing this action then I will sign an affirmation. My fee is £250

 

[Newchodge]

Small issue with your assessment - it would no be an employment judge.

And again, it's not "legal bullying" - it's a letter asking the former employer to re-affirm what he/she had already signed in their contract of employment.

Of course it is legal bullying. The employee may, or may not, have signed a confidentiality agreement. The employee may or may not decide to breach that agreement. If they do so, action may or may not be taken. Demanding, with menaces that the employee sign a 'deed' in connection with this is legal bullying.

 

[Recruitment&HR]

Could you put that into coherent English please? How can this letter notify the ex employee of what the ex employee will do? Please get a grip.

Of course it is legal bullying. The employee may, or may not, have signed a confidentiality agreement. The employee may or may not decide to breach that agreement. If they do so, action may or may not be taken. Demanding, with menaces that the employee sign a 'deed' in connection with this is legal bullying.

Wow.

1. The OP stated his contract of employment contained a confidentiality clause (like all decent employment contracts should do).
2. Confidentiality is also an implied term of an employment contract.

The ex-employer, rightly or wrongly, has concerns that the OP has not kept or will not keep to the terms of the clause. He has therefore, in line with good practice, send the former employee an undertaking to sign by which the ex employee confirms that he/she will honour the terms of the clause.

As you seem to have trouble understanding this concept, which is entirely common practice and not in any way "legal bullying", take it directly from Practical Law:

"...this is simply an undertaking from the ex-employee to the ex-employer that they will not use its confidential information. If the ex-employer is attempting to enforce an express contractual term then it is likely that the wording of the undertaking will either repeat the wording of the contract or simply refer to the relevant clause (which may be attached to the undertaking)."

The reasons for requesting an undertaking are:

• A failure to give an undertaking may indicate bad faith (and possibly an intention to misuse information) on the part of the ex-employee. A court will not grant an interim order simply on the basis that the ex-employee refused to give an undertaking, but it may take this into account when making its decision and considering the protection that is necessary and appropriate in all the circumstances.
• A court may look more favourably on a party that has made a genuine attempt to settle matters before issuing proceedings.
• If this approach is successful, the ex-employer will save legal costs and avoid having to produce a lengthy witness statement describing in detail the confidential information it wishes to keep secret.

Courtesy of Practical Law - "Confidentiality during employment and after termination"

And once again, it would NOT be an employment judge looking at the issue. Any case in relation to a breach of confidentiality must be brought in county court.

I appreciate you have strong feelings about what you feel is a "heavy-handed" approach by employers for one reason or another, but please do not let that cloud you judgement when giving advice. I'm sorry but I deal with these matters on a daily basis. I don't doubt your employment law qualifications but this is not employment law.

 

[Newchodge]

So let's work through this.

The contract has a confidentiality clause.
The employee breaches the confidentiality clause.
The employee is taken to court and judgment is made against the employee.

OR

The contract has a confidentiality clause.
Post employment the employer asks the employee not to breach the confidentiality clause.
The employee breaches the confidentiality clause.
The employee is taken to court and judgment is made against the employee.

Please explain the different outcome, apart from removing any putative defence that the employee was not aware of the confidentiality clause?

 

[Newchodge]

from Practical Law:

Which is what, given that this is a forum for lay people.

 

[Recruitment&HR]

So let's work through this.

The contract has a confidentiality clause.
The employee breaches the confidentiality clause.
The employee is taken to court and judgment is made against the employee.

OR

The contract has a confidentiality clause.
Post employment the employer asks the employee not to breach the confidentiality clause.
The employee breaches the confidentiality clause.
The employee is taken to court and judgment is made against the employee.

Please explain the different outcome, apart from removing any putative defence that the employee was not aware of the confidentiality clause?

1. Bringing a claim is extremely difficult and expensive.
2. Any proof of being reasonable will work in the claimant's favour
3. Any proof of having "warned" the employee will work in the claimant's favour
4. The majority of people are more likely to think about what information they divulge if they have received a legal letter and/or have signed an undertaking.

So apart from being a deterrent, an undertaking signed or not, serves a useful purpose should further action become necessary. Or, best case, it may simply remove all concerns because an ex-employee who has not breached the confidentiality clause or is intending to do so, would most likely pick up the phone and say "I got your letter, I'm really not sure why you believe I would share confidential information and I'm quite disappointed... but as I have done nothing wrong I'm happy to sign it".

 

[Newchodge]

1. Bringing a claim is extremely difficult and expensive.
2. Any proof of being reasonable will work in the claimant's favour
3. Any proof of having "warned" the employee will work in the claimant's favour
4. The majority of people are more likely to think about what information they divulge if they have received a legal letter and/or have signed an undertaking.

So apart from being a deterrent, an undertaking signed or not, serves a useful purpose should further action become necessary. Or, best case, it may simply remove all concerns because an ex-employee who has not breached the confidentiality clause or is intending to do so, would most likely pick up the phone and say "I got your letter, I'm really not sure why you believe I would share confidential information and I'm quite disappointed... but as I have done nothing wrong I'm happy to sign it".

In other words the employer is trying to bully the employee into not making the breach, to save them the expense of taking a claim if they do so?

 

[Recruitment&HR]

Which is what, given that this is a forum for lay people.

Practical Law Company, online knowledge resource that pretty much every law firm subscribes to.

 

[Recruitment&HR]

In other words the employer is trying to bully the employee into not making the breach, to save them the expense of taking a claim if they do so?

No, the employer is putting in place everything it can to a) avoid the former employee to committing a breach and b) protecting the business. It is doing everything it can to avoid litigation which is what is expected by the courts.

I'm not sure where the idea of bullying comes from.

 

[Newchodge]

I'm not sure where the idea of bullying comes from.

Sign the attached deed or else. That is where the idea of bullying comes from.

 

[Newchodge]

Practical Law Company, online knowledge resource that pretty much every law firm subscribes to.

Thompsons guide? Most law firms use their own research.

 

[Recruitment&HR]

Sign the attached deed or else. That is where the idea of bullying comes from.

What is the “or else”?

 

[Newchodge]

From the initial post "I am concerned at the threatening tone of the letter"

 

[Recruitment&HR]

Thompsons guide? Most law firms use their own research.

Having worked in or with numerous law firms, I can categorically tell you that everybody subscribes to PCL as it’s the only resource that provides case law updates and implications pretty much instantly, updates templates accordingly and offers a community for lawyers to have discussions.

 

[Newchodge]

Turn it around. Please can you explain the benefit to the ex-employee of signing such a document?

 

[Recruitment&HR]

From the initial post "I am concerned at the threatening tone of the letter"

Some people consider any legal letter “threatening” regardless of content. It doesn’t change the legal background of such a letter nor does it make it threatening.

 

[Recruitment&HR]

Turn it around. Please can you explain the benefit to the ex-employee of signing such a document?

Simple. It confirms that they have not done anything wrong and don’t intend to do so. In fact it protects them because without damning evidence any attempt to seek an injunction or indeed any attempt to seek legal action would not only be thrown out by a judge but also advised against by a solicitor.

 

[AllUpHere]

It's hard to tell which one of you actually knows what you are talking about, which isn't going to give anyone much assistance is it.

It might help if someone could confirm whether it would be an employment judge that dealt with such a case, as @Newchodge claims, or not, as @Recruitment&HR claims. That would be a start.

 

[The Byre]

Practical Law is a service for businesses and must be seen as such. It is not there for the benefit of all, but for those advising businesses. Therefore, it cannot be the arbiter of all things. In short, it is and must be biased. That is what it is there for!

Yes, it is a great resource, but like any and all legal commentaries old and new, learned and lay, it must be taken with a pinch of salt and any guidelines therein must be qualified by the context of the case we are trying to deal with.

Courts on the other hand are different. They are not some private subscription service for business, or even a place where employees may redress some perceived injustice, but they are there to judge cases based on the facts.

For a former employee to not wish to have any further contractual dealings with their former employer falls very far short of being a delinquent disregard of the common law principle of reasonable action.

As for that text from PL, it is couched in the most 'qualifying' terms imaginable - 'may look more favourably', 'may take into account'. It is merely laying out how the court MAY view certain actions under various unspecified circumstances.

Once again - a court is obliged to view cases based on the facts (and not as you advocate, based on 'Brownie-Points').

So, once again and for the hard-of-thinking - It is totally reasonable for a former employee to not wish to have any further contractual dealings with a former employer.

 

[Recruitment&HR]

It's hard to tell which one of you actually knows what you are talking about, which isn't going to give anyone much assistance is it.

It might help if someone could confirm whether it would be an employment judge that dealt with such a case, as @Newchodge claims, or not, as @Recruitment&HR claims. That would be a start.

An employment judge presides over a case in the employment tribunal. Since an employer can't take an employee to the ET, it follows that the case can't be overseen by an employment judge.

 

[Recruitment&HR]

Practical Law is a service for businesses and must be seen as such. It is not there for the benefit of all, but for those advising businesses. Therefore, it cannot be the arbiter of all things. In short, it is and must be biased. That is what it is there for!

Yes, it is a great resource, but like any and all legal commentaries old and new, learned and lay, it must be taken with a pinch of salt and any guidelines therein must be qualified by the context of the case we are trying to deal with.

Courts on the other hand are different. They are not some private subscription service for business, or even a place where employees may redress some perceived injustice, but they are there to judge cases based on the facts.

For a former employee to not wish to have any further dealings with their former employer falls very far short of being a delinquent disregard of the common law principle of reasonable action.

As for that text from PL, it is couched in the most 'qualifying' terms imaginable - 'may look more favourably', 'may take into account'. It is merely laying out how the court MAY view certain actions under various unspecified circumstances.

Once again - a court is obliged to view cases based on the facts (and not as you advocate, based on 'Brownie-Points').

So, once again and for the hard-of-thinking - It is totally reasonable for a former employee to not wish to have any further dealings with a former employer.

Not claiming anything else. The fact however remains, the former employer is merely asking for an undertaking confirming that the former employee understands that he/she is bound by the confidentiality clause of their contract of employment. It's a clause that, by law, survives the end of the contract.

It is entirely the former employee's prerogative not sign the undertaking and ignore the employer. Unless the matter ever goes to court, which it only can if there is clear-cut evidence of a breach, there is no positive or negative impact on the former employee.

However, for the simple reason that the undertaking asks for nothing other than confirming awareness of the confidentiality clause, I see no reason why a former employee who has done nothing wrong, would not sign it.

But again, there is no legal obligation to do so or indeed to engage with the former employer.

As for PCL - the advice provided is given lawyers and judges. There is a reason why it's used by the majority of law firms, regardless of size, and why they pay a chunky subscription fee.

 

[Newchodge]

It's hard to tell which one of you actually knows what you are talking about, which isn't going to give anyone much assistance is it.

It might help if someone could confirm whether it would be an employment judge that dealt with such a case, as @Newchodge claims, or not, as @Recruitment&HR claims. That would be a start.

It would only be an employment judge if the ex-employee took a case against the ex-employer, who counter claimed. Which is unlikely, so it would be a county court judge hearing it.