Former Employer is demanding I sign a confidentiality deed

[The Byre]

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.

Really???

Try this reason for starters -

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.

• Other reasons include reports of bullying and unpredictable behavior by the employer.
• Advice to not sign ANYTHING coming from that former employer.
• No sane person signs anything that reaffirms, alters or otherwise qualifies an existing contract (unless, as is the case here with the former employer - he is seeking to change the conditions of that contract).

 

[Newchodge]

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.

So there is no benefit for the employee.

As for PCL - the advice provided is given lawyers and judges.

Do you mean it is given BY lawyers and judges, or TO them?

 

[Mark Laurie]

I wouldn't sign the damn thing. He has signed a contract on commencing employment why do so again. Ignore it.

 

[Recruitment&HR]

Really???

Try this reason for starters -

• Other reasons include reports of bullying and unpredictable behavior by the employer.
• Advice to not sign ANYTHING coming from that former employer.
• No sane person signs anything that reaffirms, alters or otherwise qualifies an existing contract (unless, as is the case here with the former employer - he is seeking to change the conditions of that contract).

The employer is not seeking to alter the contract and a confidentiality clause survives the end of the contract in any event.

Who are we to judge whether the employer actually bullied or displayed unpredictable behaviour. You know how many people I deal with on a daily basis who insist their employer has done xyz when in reality there was nothing wrong.

The fact remains, an undertaking is an entirely legitimate document to request of there is any doubt about confidentiality clauses or post employment restrictions being honoured. A large number of employers get them signed by default on the final day of employment or draw attention to the clauses in termination letters/resignation acceptance letters.

 

[Recruitment&HR]

So there is no benefit for the employee.

Do you mean it is given BY lawyers and judges, or TO them?

BY them.

 

[ecommerce84]

100% bin the letter.

If you’re not going to break the confidentiality clause then you have nothing to worry about anyway. And if you are going to break it then signing the letter won’t count for anything.

Also if ex employees keep signing them and sending them back it makes them think this sort of behaviour is acceptable and they’ll keep on doing it.

If you are intending to sign it, at least make them sweat for a few weeks before you send it back!

 

[obscure]

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.

So can someone explain what the actual purpose of this is given that they have already signed an undertaking... in the form of their contract with a confidentiality clause in.

If the employer wants to send me a letter reminding me of my obligations under that contract then that is fine but why would I need to sign a second undertaking. Why would you need that if you already have a legally binding contract. Signing a contract is confirmation that you intend to be bound by the terms. Is it now common practice to buttress every contract and legal agreement by getting the parties to sign a second confirmation that they actually intend to honour the contract?

And if it is necessary to confirm what I have already contractually agreed to then how do we know I intend to honour my confirmation that I will honour the contract... unless I sign an third confirmation ....

To quote Monty Python "This is all getting very silly"

 

[Recruitment&HR]

So can someone explain what the actual purpose of this is given that they have already signed an undertaking... in the form of their contract with a confidentiality clause in.

If the employer wants to send me a letter reminding me of my obligations under that contract then that is fine but why would I need to sign a second undertaking. Why would you need that if you already have a legally binding contract. Signing a contract is confirmation that you intend to be bound by the terms. Is it now common practice to buttress every contract and legal agreement by getting the parties to sign a second confirmation that they actually intend to honour the contract?

And if it is necessary to confirm what I have already contractually agreed to then how do we know I intend to honour my confirmation that I will honour the contract... unless I sign an third confirmation ....

To quote Monty Python "This is all getting very silly"

A contract is not an undertaking. Most people don’t pay attention to individual clauses and don’t understand that some clauses survive the contract upon termination.

A lot of people don’t understand how even sharing a small amount of confidential information can impact a business.

 

[Newchodge]

A contract is not an undertaking.

No, strictly speaking, it isn't. But it can be enforced as if it were, so what's the difference?

 

[Recruitment&HR]

No, strictly speaking, it isn't. But it can be enforced as if it were, so what's the difference?

I explained that earlier; the additional undertaking shows that the employer has done everything to make the former employee aware, it serves as proof of an attempt to settle issues (where applicable) and should legal action become necessary an unsigned undertaking works in favour of the former employer (whilst a signed undertaking in the absence of clear-cut proof of any wrongdoing, works in the employee's favour).

From a legal point of view, where an undertaking is breached, the courts have the power to consider this equal to a court order being breached, whereas a contract breach would attract less severe punishment.

 

[Newchodge]

I explained that earlier; the additional undertaking shows that the employer has done everything to make the former employee aware, it serves as proof of an attempt to settle issues (where applicable) and should legal action become necessary an unsigned undertaking works in favour of the former employer (whilst a signed undertaking in the absence of clear-cut proof of any wrongdoing, works in the employee's favour).

From a legal point of view, where an undertaking is breached, the courts have the power to consider this equal to a court order being breached, whereas a contract breach would attract less severe punishment.

So, I ask again, what is the benfit to the employee of signing? Given the clear benefits for the employer (that you have listed) and consequent disadvantage for the employee? And also the fact that this thread is about advising the ex-employee about whether he should sign the demanded deed?

 

[Recruitment&HR]

So, I ask again, what is the benfit to the employee of signing? Given the clear benefits for the employer (that you have listed) and consequent disadvantage for the employee? And also the fact that this thread is about advising the ex-employee about whether he should sign the demanded deed?

Once again - what is the (perceived) disadvantage to the employee? You still have not clarified what you mean by that.

 

[Paul Kelly ICHYB]

Hi all.

Interesting discussion.

Why is the OP being referred to as the employee in some posts? They are not - they have left the business!

I am not a solicitor or HR expert, however, asking someone to be bound to terms that they stopped being bound to when they leave a company does sound.... strange and possibly arrogant/forceful on behalf of the ex-employer.

If there is nothing in the ex-employees contract re confidentiality duration, tough on the employer!

I would ignore the letter, or, if you want to be polite, write back and decline to sign the agreement on the grounds that there is no obligation (or precedent?) to do so.

 

[Recruitment&HR]

Hi all.

Interesting discussion.

Why is the OP being referred to as the employee in some posts? They are not - they have left the business!

I am not a solicitor or HR expert, however, asking someone to be bound to terms that they stopped being bound to when they leave a company does sound.... strange and possibly arrogant/forceful on behalf of the ex-employer.

If there is nothing in the ex-employees contract re confidentiality duration, tough on the employer!

I would ignore the letter, or, if you want to be polite, write back and decline to sign the agreement on the grounds that there is no obligation (or precedent?) to do so.

Hi

As per the OP's post - there is a confidentiality clause in the contract and by default that survives the contract once terminated. The ex-employer is asking for an undertaking (for whatever reason) from the ex-employee to confirm he is aware that he is bound by the clause and that he has not/will not divulge confidential information. Entirely good practice and happens every day.

 

[The Byre]

Entirely good practice and happens every day.

I disagree.

But then I don't care what you think - my only fear is that the OP or others may think that because you have chosen to interpret something you read on an online subscription service for employers only, that your biased and (IMO) incorrect advice is 'gospel'.

Just because you read something somewhere online, does not mean that it is true or that it applies in this case.

You have failed to understand the very text you quoted - it says 'may' - it is an outline of how an advocate may seek to apply pressure and present a case before a court in a certain way. It is NOT nor does it try to be a clear statement of how the law in this case is to be applied.

The ex-employer is asking for an undertaking (for whatever reason) from the ex-employee to confirm he is aware that he is bound by the clause and that he has not/will not divulge confidential information.

As I stated above - any additional contract or addendum to a contract MUST by its very existence qualify and/or alter that contract in some way.

The key words here are "for whatever reason" and if the original contract is less than firm on this issue and it would be in the interests of the former employer to have the terms of the contract restated and possibly altered by that addendum, that would be a very good reason to seek to pressure a former employee into signing.

It is solely in the interests of the former employer and is NOT in the interests of the former employee. It is therefore NOT good practice.

 

[fisicx]

Entirely good practice and happens every day.

Really? In 40 years of signing all sorts of contracts with all sorts of confidentially clauses I've never once had an ex employer chase me to sign such a document.

A contract is not an undertaking. Most people don’t pay attention to individual clauses and don’t understand that some clauses survive the contract upon termination.

Then this is either the fault of the employer for not making sure staff understand the contract or the employee for not reading the thing before signing.

 

[Mr D]

Really? In 40 years of signing all sorts of contracts with all sorts of confidentially clauses I've never once had an ex employer chase me to sign such a document.

Then this is either the fault of the employer for not making sure staff understand the contract or the employee for not reading the thing before signing.

With in excess of 30 employers, some with reputations for sensitive stuff and some with buildings stuffed with lawyers, none have ever chased me after leaving regarding anything to do with my contract, even when its a competitor I end up working for.

May happen every day where Recruitment works, never happens for me or my missus. Perhaps its only certain companies that bother?

 

[Recruitment&HR]

I disagree.

But then I don't care what you think - my only fear is that the OP or others may think that because you have chosen to interpret something you read on an online subscription service for employers only, that your biased and (IMO) incorrect advice is 'gospel'.

Just because you read something somewhere online, does not mean that it is true or that it applies in this case.

You have failed to understand the very text you quoted - it says 'may' - it is an outline of how an advocate may seek to apply pressure and present a case before a court in a certain way. It is NOT nor does it try to be a clear statement of how the law in this case is to be applied.


As I stated above - any additional contract or addendum to a contract MUST by its very existence qualify and/or alter that contract in some way.

The key words here are "for whatever reason" and if the original contract is less than firm on this issue and it would be in the interests of the former employer to have the terms of the contract restated and possibly altered by that addendum, that would be a very good reason to seek to pressure a former employee into signing.

It is solely in the interests of the former employer and is NOT in the interests of the former employee. It is therefore NOT good practice.

By all means, please disagree. I do this every day.

There is nothing to indicate that the employer wants to "firm up" the contract. If he does, then it can't happen without compensation and should be done via a Settlement Agreement.

As it stands, from the info provided by the OP, it's an undertaking re-affirming the confidentiality clause of the contract, serving as a reminder that it survives the contract in perpetuity.

 

[Recruitment&HR]

Really? In 40 years of signing all sorts of contracts with all sorts of confidentially clauses I've never once had an ex employer chase me to sign such a document.

Then this is either the fault of the employer for not making sure staff understand the contract or the employee for not reading the thing before signing.

Usually both. Hence the majority of companies now reminding employees of their obligations in termination letters/resignation acceptance letters.

Usually in the form of:

For the avoidance of doubt, we remind you that those provisions in the Contractwhich are expressed to have effect after the termination of your employment (such as clause XX Confidential Information, clause XX Intellectual Property, and clause XX Restrictive Covenant) remain in full force and effect.

 

[Paul Kelly ICHYB]

it's an undertaking re-affirming the confidentiality clause of the contract, serving as a reminder that it survives the contract in perpetuity

Which the OP is under no obligation to sign.

Edit:
'in perpetuity' - not sure that is enforceable.....

 

[cjd]

It is NOT normal behaviour to ask for a deed. There is no obligation to sign anything, neither is there any advantage in doing so - except for the employer.

A reasonable employer who had a reasonable concern that the ex-employee would break the NDA because he may have forgotten he signed one would simply remind him of it.

You are totally free to ignore this but given your ex-employer's obvious paranoia, he may take this as an indication that you intend to breach and get even more psychotic. If you're sure that nothing you are about to do will breach the NDA, return the deed with a 'no thank you but' informing him that you are fully aware of the contract you signed and intend to keep to it.

But for your own reassurance, you should really take the advice of an employment lawyer yourself. There may, of course, be more to this than you're telling.

 

[Recruitment&HR]

Which the OP is under no obligation to sign.

Edit:
'in perpetuity' - not sure that is enforceable.....

I have stated several times that it's his prerogative not sign it.

And yes, it is enforceable (as long as it amount to a trade secret or personal data of persons (as per GDPR/DPA 2018) which is in the possession/knowledge of the ex-employee).

Example clause:

You shall not (except in the proper course of your duties), either during the Appointment or at any time after its termination (however arising), use or disclose to any person, company or other organisation whatsoever (and shall use your best endeavours to prevent the publication or disclosure of) any Confidential Information. This shall not apply to:
(a)any use or disclosure authorised by the Board or required by law;
(b)any information which is already in, or comes into, the public domain other than through your unauthorised disclosure; or
(c)any protected disclosure within the meaning of section 43A of the Employment Rights Act 1996.

 

[Recruitment&HR]

It is NOT normal behaviour to ask for a deed. There is no obligation to sign anything, neither is there any advantage in doing so - except for the employer.

A reasonable employer who had a reasonable concern that the ex-employee would break the NDA because he may have forgotten he signed one would simply remind him of it.

You are totally free to ignore this but given your ex-employer's obvious paranoia, he may take this as an indication that you intend to breach and get even more psychotic. If you're sure that nothing you are about to do will breach the NDA, return the deed with a 'no thank you but' informing him that you are fully aware of the contract you signed and intend to keep to it.

But for your own reassurance, you should really take the advice of an employment lawyer yourself. There may, of course, be more to this than you're telling.

Why on earth are you talking about a NDA? There is no NDA in force. We are talking about a bog standard confidentiality clause in an employment contract.

And no one has claimed there is an obligation on the OP to sign the undertaking. I have been explaining, over and over again, why it is common for a former employer to ask for one and why it can be to the benefit of both parties to sign it. That doesn't mean the OP has to sign and I have not said he should.

 

[MOIC]

1. I don't think it's wrong for the ex employer to ask for an undertaking if he feels the ex employee needs to be reminded of the IP clause.

2. I don't think the ex employee should sign the document as long as he does not expect to disclose any confidential information which would breach the original contract and just return it stating that he is fully aware of his obligations.

3. In the event that the ex employee does breach the original contract, having not signed the letter and is taken to court by the ex employer, then this may well count against him.

That's how I read the situation.

 

[Recruitment&HR]

1. I don't think it's wrong for the ex employer to ask for an undertaking if he feels the ex employee needs to be reminded of the IP clause.

2. I don't think the ex employee should sign the document as long as he does not expect to disclose any confidential information which would breach the original contract and just return it stating that he is fully aware of his obligations.

3. In the event that the ex employee does breach the original contract, having not signed the letter and is taken to court by the ex employer, then this may well count against him.

That's how I read the situation.

Spot on.

 

[cjd]

Why on earth are you talking about a NDA? There is no NDA in force. We are talking about a bog standard confidentiality clause in an employment contract.

My apologies, delete NDA, insert confidentiality clause. Nothing else changes.

And no one has claimed there is an obligation on the OP to sign the undertaking.

I know.

I have been explaining, over and over again, why it is common for a former employer to ask for one and why it can be to the benefit of both parties to sign it.

It is NOT normal and is totally unnecessary as a simple reminder either personal or by letter would suffice. Asking for the deed is deliberately oppressive.

That doesn't mean the OP has to sign and I have not said he should.

I know.

 

[cjd]

3. In the event that the ex employee does breach the original contract, having not signed the letter and is taken to court by the ex employer, then this may well count against him.

That's how I read the situation.

Sure, that's how it's being presented by the employment guy who is, don't forget, working for the employer.

I'm suspicious about this. Any breach of the clause would be a matter of fact and the remedy is compensation for damage incurred. That damage is not made worse by not signing a deed that he has no obligation to sign.

On the other hand, if he DOES sign and then breaches, he's broken two agreements.

 

[paulears]

If an ex-employer demanded anything after employment was terminated, they would get no response whatsoever from me. once you have left, then any request from them needs to be nice and have some form of advantage for you, else why do it? Clearly, if your contract had the usual confidentiality clauses, you need to keep those confidences, but bugger bolstering their control of what you say in the future.

 

[Mr D]

Why on earth are you talking about a NDA? There is no NDA in force. We are talking about a bog standard confidentiality clause in an employment contract.

And no one has claimed there is an obligation on the OP to sign the undertaking. I have been explaining, over and over again, why it is common for a former employer to ask for one and why it can be to the benefit of both parties to sign it. That doesn't mean the OP has to sign and I have not said he should.

Common for you. Not so common apparently for the rest of us. Indeed unheard of by at least some.

 

[MOIC]

2. I don't think the ex employee should sign the document as long as he does not expect to disclose any confidential information which would breach the original contract and just return it stating that he is fully aware of his obligations.

He does not have to sign it. (I certainly wouldn't)

Further, I would also not disclose any confidential information that would breach any employment contracts I had and understand that there is a consequence after leaving my employment.

Whilst it's not a 'friendly' or indeed a welcome letter, the solicitors are working on behalf of the employer and it's not uncommon to issue such letters.

I do agree with the comments not to sign the letter, but as I stated above, as long as the ex employee has no thoughts whatsoever (whether advertently or inadvertently), in the future to disclose any information, by not responding to the letter may act against him should he be taken to court in an IP case.

Solicitors are solicitors (and I dislike most as does any other person), but they are there to do a job and in this instance are looking to protect their client's interest.

Sometimes it's better to to ensure that a confidentiality agreement is fully understood by both parties (it's not always fully understood by many people), rather then there being a breach and litigation follows, which does not help either party. . . . . .except for the solicitors.

Bullying? I don't think so.

Reminding someone of their obligations? That about sums it up for me.

Perhaps in some cases an ex employee may think twice before giving out confidential information if they feel the ex employer will not take any further action. This letter will be a reminder that they will, which I presume was the reason the letter was sent out.

Any letter coming from a solicitor can be (as well as feel) intimidation, as long as they stick to the correct side of the law.

I agree the perspective of most posters are coming from the side of the ex employee, but what if you was in the shoes of the ex employer and had potential losses from an ex employee disclosing confidential information which caused harm on your company?

It may well be that the amount of loss (if and when proven) could not be paid by the ex employee.

This may well be the case in this instance.

We simply do not have all the facts and if we did, could cause some to think differently.

There are always 2 sides to every case. Most 'defendants' on a forum only share their side.

At least this thread makes for interesting reading from the perspective of both the employer and employee.

Not dissimilar to perhaps a David v Goliath scenario where we all want David to win.

 

[UKSBD]

I have been explaining, over and over again, why it is common for a former employer to ask for one and why it can be to the benefit of both parties to sign it.

Do you think it will become more common now we have the GDPR?

 

[Mr D]

He does not have to sign it. (I certainly wouldn't)

Further, I would also not disclose any confidential information that would breach any employment contracts I had and understand that there is a consequence after leaving my employment.

Whilst it's not a 'friendly' or indeed a welcome letter, the solicitors are working on behalf of the employer and it's not uncommon to issue such letters.

I do agree with the comments not to sign the letter, but as I stated above, as long as the ex employee has no thoughts whatsoever (whether advertently or inadvertently), in the future to disclose any information, by not responding to the letter may act against him should he be taken to court in an IP case.

Solicitors are solicitors (and I dislike most as does any other person), but they are there to do a job and in this instance are looking to protect their client's interest.

Sometimes it's better to to ensure that a confidentiality agreement is fully understood by both parties (it's not always fully understood by many people), rather then there being a breach and litigation follows, which does not help either party. . . . . .except for the solicitors.

Bullying? I don't think so.

Reminding someone of their obligations? That about sums it up for me.

Perhaps in some cases an ex employee may think twice before giving out confidential information if they feel the ex employer will not take any further action. This letter will be a reminder that they will, which I presume was the reason the letter was sent out.

Any letter coming from a solicitor can be (as well as feel) intimidation, as long as they stick to the correct side of the law.

I agree the perspective of most posters are coming from the side of the ex employee, but what if you was in the shoes of the ex employer and had potential losses from an ex employee disclosing confidential information which caused harm on your company?

It may well be that the amount of loss (if and when proven) could not be paid by the ex employee.

This may well be the case in this instance.

We simply do not have all the facts and if we did, could cause some to think differently.

There are always 2 sides to every case. Most 'defendants' on a forum only share their side.

At least this thread makes for interesting reading from the perspective of both the employer and employee.

Not dissimilar to perhaps a David v Goliath scenario where we all want David to win.

A letter reminding about confidentiality is one thing, demanding a non-employee do something is a bit more.

 

[Alyson Dyer]

Did the letter arrive by “signed for” Mail or similar?
If not, it never arrived, end of.

 

[cjd]

Do you think it will become more common now we have the GDPR?

It is NOT common, it's unusual, unnecessary and deliberately opressive.

Moreover, with GDPR, the logic would be that an ex-employee should be asking the employee to sign a deed reminding the employer to protect HIS data.

This is absurd and should be resisted.

 

[ecommerce84]

@Deuxbiers poked his head in at just gone quarter past six, thought ‘what on earth have I started’ and quickly ducked back out unharmed whilst UKBF implodes behind him......

 

[MOIC]

We take at face value what the OP writes.

A quick look at his only other post on UKBF, not related to this thread, suggests a disgruntled ex employee, that perhaps feels hard done by.

If all the facts are laid on the table, we can then make accurate statements.

I suspect there are a few things that the OP has intentionally decided to omit.

I may be wrong.

 

[cjd]

We take at face value what the OP writes.

A quick look at his only other post on UKBF, not related to this thread, suggests a disgruntled ex employee, that perhaps feels hard done by.

If all the facts are laid on the table, we can then make accurate statements.

I suspect there are a few things that the OP has intentionally decided to omit.

I may be wrong.

If you're right - and there's always another side to these arguments that we never hear - then it's even more important that he signs nothing.

But it's often the case here that we want to defend the employee against the employer although many of us are actually employers. I guess we just want to defend the underdog having been there ourselves.

 

[MOIC]

@cjd This thread demonstrates that you are right.

 

[UKSBD]

It is NOT common, it's unusual, unnecessary and deliberately opressive.

Moreover, with GDPR, the logic would be that an ex-employee should be asking the employee to sign a deed reminding the employer to protect HIS data.

This is absurd and should be resisted.

With the GDPR in place I would have thought it was even more important that an employer reminds any employee (who is leaving) aware of their responsibilities.

If it's not common yet, it should be

Making them sign something obviously isn't right but being seen that they have procedures in place to protect data after an employee leaves has to be good for them.

 

[Newchodge]

Once again - what is the (perceived) disadvantage to the employee? You still have not clarified what you mean by that.

Whether there is a disadvantage or not, please explain why the employee should do it, other than because his ex employer has asked him to in a threatening solicitor's letter? The thread is about the OP asking whether he was legally required to respond and whether he should. Everyone else thinks he should not. You don't see why he should not. But you cannot explain why he should.