Former Employer is demanding I sign a confidentiality deed

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@Recruitment&HR has already commented on that in his first post in this thread.

This wider point of this thread is about confidential clauses within a contract and should have a balanced view from both an employee’s and employer’s perspective.

You are arguing for the employee. @Recruitment&HR is arguing for the employer.

You are both right in defending your particular stance.

Ultimately, if and when a breach of confidentiality case is brought before a court, the judge will look at all correspondence related to the matter and may decide that the ex employer gave warning which the ex employee ignored and that may work against him, depending on dates of other evidence supplied.

As in most cases where litigation takes place, the outcome is never black or white and circumstances can influence a judge’s decision.

We are all agreed that morally and from a personal standpoint the letter is going over and beyond what is required and that the ex employee is under no legal requirement to either sign or even acknowledge the letter.

A judge may take a different view depending on what other evidence is presented in the case.

For readers of this thread, whether in the coming days, weeks or months, where they may have similar situations which they can relate to, on both sides of the argument, it’s important to have a balanced view representing both sides.

This thread seems like a ‘Brexit’ situation, where there is only one view on each side and the other side cannot see the merits of the opposing side, for whatever reason.

Perhaps the word ‘Brexit’ will be in the Oxford Dictionary in future years to describe such a scenario.
 
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CVRO

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As has been mentioned before, if the OP breaks the confidentiality clause and the former employer pursues it and can prove there has been a breach, the OP is in trouble whether or not he signs the new document.
However, there may be a slight advantage in signing it if it reduces the chance of the former employer pursuing the OP in court as those cases can be troublesome until the OP can get it thown out of court.
Of course, that slight advantage would only be worth anything if the language in the document were accurate and reflected exactly what happened.
To reduce the risk of a claim that the document changes the original contract in any way, language would need to be added to make it clear that nothing in this new document changes the original contract and in case of any discrepancy, the original contract prevails.
I'd also ask to have the new document reviewed by a lawyer of my choosing with the cost fully reimborsed by the former employer.
If the former employer did not agree to the conditions, I'd not sign anything.
 
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Nobody would sign the letter and 99% would not even acknowledge it.

A judge, should a claim go to court, may have other ideas. They do not think like a layman nor should they.
 
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CVRO

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My point was to highlight that, given the claim that the former employer is trigger happy when it comes to pursuing people in court, there may be an advantage in signing the letter, provided it is on the OP's terms, just to avoid the hassle of defending a claim.

Editted to correct an obvious typo.
 
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Newchodge

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My point was to highlight that, given the claim that the former employer is trigger happy when it comes to pursuing people in court, there may be an advantage in signing the letter, provided it is on the OP's terms, just to avoid the hassle of defending a claim.

Editted to correct an obvious typo.
There are a limited number of scenarios.
The OP breaches confidentiality. The ex employer takes no action. Signing legal deed irrelevant.
The OP breaches confidentiality. The ex employer takes action. The judge will award damages based on the losses suffered by the claimant. Signing the lrgal deed does not affect those losses. Signing legal deed irrelevant.
The OP does not breach confidentiality. The ex employer takes no action. Signing legal deed irrelevant.
The OP does not breach confidentiality. The ex employer takes action, loses, and the judge awards costs to the OP. Signing legal deed irrelevant (as it does not affect level of costs).

If the ex employer is a trigger happy moron, signing or not signing the legal deed may affect his response. That is unknowable, but on balance signing is not likely to improve the OP's current position.
 
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If I was the OP, I would get legal opinion, based on ALL the facts that need to be presented, then decide what to do.

A defendant (i.e. the OP) will always state in an open forum his side of events whilst (perhaps) omitting relevant details which could be viewed from another angle.

As you say, this forum is full of layman, so a legal matter should be presented in full with a legal person to get the correct advice.
 
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Mr D

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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.

Simply a letter from the employer reminding the ex employee of the confidentiality and whatever other ongoing agreements would have done the job. Without the aggro.
 
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Simply a letter from the employer reminding the ex employee of the confidentiality and whatever other ongoing agreements would have done the job. Without the aggro.
Perhaps in layman's terms, yes.

From a legal stand point there may be another reason which the solicitors have advised the employer . . . . . . .and charge their fees to boot!

Most posters are coming from a layman perspective, where in fact it is probably a legal point of view that needs to be addressed.

At least there is a common view, from the perspective of a layman that the letter should not be signed.

If he follows this advice and gets taken to court . . . . . .and loses . . . . . .then what would have been the best advice to give?

A legal situation needs legal guidance, not a layman's moral reasons not to acknowledge a solicitor's letter.
 
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Once again - what is the (perceived) disadvantage to the employee? You still have not clarified what you mean by that.
You already clarified that earlier in the thread.

The employee signed a contract agreeing not to disclose. Breach of that agreement would result in a potential punishment of X.
Singing the undertaking provides zero benefit to the employee but increases the severity of any penalty for the same disclose. That is a clear disadvantage.
 
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The OP breaches confidentiality. The ex employer takes action. The judge will award damages based on the losses suffered by the claimant. Signing the lrgal deed does not affect those losses. Signing legal deed irrelevant.
This scenario is incorrect. As was pointed out earlier in the thread the penalty for breaching a deed of undertaking is more severe than the penalty for breaching a contract... so signing it is not irrelevant as it would result in them suffering a more severe punishment for the same disclosure.
 
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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.

Easy there, my client base is pretty much evenly split between employers and employees. In fact I do a large amount of pro-bono work for employees.
 
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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.

Again, spot on.
 
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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.

It is common, it is not unusual and it often is necessary. It can't by default be oppressive because it merely reaffirms a contract that was signed in the first place and a clause which remains in force post termination.
 
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cjd

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Easy there, my client base is pretty much evenly split between employers and employees. In fact I do a large amount of pro-bono work for employees.

Are you an employment lawyer?
Do you recommend your employees sign such a deed?
 
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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.

I have stated repeatedly that legally the ex employee does not have to sign it. That answered the question.

I have also, as common during a discussion, explained why the employer wants it and why there is no issue or risk signing it.

Furthermore, I have explained that signing it does in fact provide the ex employee with a an advantage if the ex employer really is slightly bonkers and attempts to take legal action without proof.

The undertaking is equal to a court order, ordering the ex employee not to disclose any confidential information. Such an order is often issued regardless of evidence of any wrongdoing. Having signed the undertaking prior to any legal action means that, short of the employer providing good evidence, a judge would throw out the case immediately as there is nothing of substance to add by the court. This in turn saves time, money and avoids unnecessary stress.

NB - Who says the letter is threatening? None of us have seen it.
 
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This scenario is incorrect. As was pointed out earlier in the thread the penalty for breaching a deed of undertaking is more severe than the penalty for breaching a contract... so signing it is not irrelevant as it would result in them suffering a more severe punishment for the same disclosure.

See post #96 and the previous posts. There is an advantage to the employee unless they plan to disclose confidential information.
 
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Are you an employment lawyer?
Do you recommend your employees sign such a deed?

I would not give blanket advice to sign the undertaking without knowing the full picture. I can't give legal advice in a forum. I have simply explained why these undertakings are issued by employers.

There have been countless occasions where I have advised against signing and similarly there are cases where I have advised to sign. Likewise, there have been cases where an employer attempts to push the ex employee to sign because they realised there is no confidentiality clause in their badly drafted contract (often downloaded from rip off websites). In those cases I would send a very blunt letter advising the former employer that the only way of getting the employee to agree to a new restriction would be by way of a settlement agreement with appropriate payment.
 
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cjd

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It is common, it is not unusual and it often is necessary. It can't by default be oppressive because it merely reaffirms a contract that was signed in the first place and a clause which remains in force post termination.

It's a very long way from a normal situation - I've never seen it done before in even very difficult cases, presumably because a employee's lawyer would simply laugh at it - it's absurd.

In this particular case it's being used in a harassing and threatening manner and is obviously it's intent. You're simply naive if you think lawyers don't use legal instruments to oppress

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.

He's being threatened with further action for not doing something he has no legal requirement to do.
 
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It's a very long way from a normal situation - I've never seen it done before in even very difficult cases, presumably because a employee's lawyer would simply laugh at it - it's absurd.

In this particular case it's being used in a harassing and threatening manner and is obviously it's intent. You're simply naive if you think lawyers don't use legal instruments to oppress



He's being threatened with further action for not doing something he has no legal requirement to do.

With all due respect; I do this for a living so I would hazard a guess that I deal with more cases where this applies than you would see and secondly, you are taking the OP’s post at face value. Legal language may seem threatening to many people but that doesn’t mean it is.
 
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