Former Employer is demanding I sign a confidentiality deed

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cjd

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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.

Can I take it from that non-answer of my question 'are you a lawyer?' that you are not a lawyer? Typically recruitment agents and HR people are not. (But of course they have access to lawyers and some relevant training and experience.)

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.

Thank you, that's a fair answer.

But what we're all struggling with here is finding any circumstances where an employee would benefit by signing such a deed. A simple reminder of the confidentiality terms of the contract is all that is necessary, anything more has the nature of a threat and is not in the employees interest.
 
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kulture

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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.

Yes, lets take the OP's posts at face value. The OP said that the letter from the employee had FACTUAL inaccuracies. That it stated that he had already breached confidentiality. Legal documents are seen by some as intimidating. They may include bits where by signing you are admitting to breaking the confidentiality, which may be wrong.

NO ONE should sign ANY document that they do not FULLY understand and FULLY agree with.

Nothing else matters.
 
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Can I take it from that non-answer of my question 'are you a lawyer?' that you are not a lawyer? Typically recruitment agents and HR people are not. (But of course they have access to lawyers and some relevant training and experience.)



Thank you, that's a fair answer.

But what we're all struggling with here is finding any circumstances where an employee would benefit by signing such a deed. A simple reminder of the confidentiality terms of the contract is all that is necessary, anything more has the nature of a threat and is not in the employees interest.

You can take it as I am CiLex qualified which means I can give legal advice (an no, I won't give legal advice on a forum). The reason why I took this path is that you don't have to be a solicitor to represent at tribunal and I took the decision to move into employment law (from HR) quite late and whilst already running a HR consultancy and recruitment business.

I'e explained several times what the benefits to the employee are.
 
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Yes, lets take the OP's posts at face value. The OP said that the letter from the employee had FACTUAL inaccuracies. That it stated that he had already breached confidentiality. Legal documents are seen by some as intimidating. They may include bits where by signing you are admitting to breaking the confidentiality, which may be wrong.

NO ONE should sign ANY document that they do not FULLY understand and FULLY agree with.

Nothing else matters.

And how many employees do you think I get on an almost daily basis who make claims that are inaccurate. The fact remains that we don't know the circumstance and have not seen the letter. Nothing else matters.

I give you an example from last month.

IT employee noticed that ex-employee connected to Dropbox a few hours after they had left the office for the last time. Among the downloaded/synced files was the client list in Excel format which included personal details of client contacts, financial information as well as the expiration dates of retainer contracts.

IT disabled the user (arguably this should have happened the second they left the building) and the MD called, e-mailed and texted the ex employee. No response.

The employment contract did have a confidentiality clause as well as post employment restrictions.

The business is a data controller for client data under GDPR.

Now tell me what you would have done in this situation and once you have done that, I will tell you what actually happened.
 
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cjd

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Now that's a specific case where it's reasonable to suspect the employee of not only breaking a civil contract but possibly criminal law too. I can see a justification for asking for the data to be deleted and a legal promise to be made.

What to do if he refuses would be interesting - the company should probably report a loss of personal data to the ICO (and technically should anyway.)
 
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Mr D

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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.

Considering there usually is not any other information, taking an OP's post at face value tends to happen.

They are usually best placed to present what the situation is.
 
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Now that's a specific case where it's reasonable to suspect the employee of not only breaking a civil contract but possibly criminal law too. I can see a justification for asking for the data to be deleted and a legal promise to be made.

What to do if he refuses would be interesting - the company should probably report a loss of personal data to the ICO (and technically should anyway.)

A situation like this is actually very common.

Either way - back to the case:

The same afternoon their solicitor couriered a letter to the ex employee stating that there a reasonable grounds to believe he is in possession of confidential data and asked for the following two undertakings to be given within 48 hours:

1. He is aware and will honour the confidentiality clause and post employment restriction clause of his employment contract.

2. He agrees to delete all confidential data irrevocably.

Heavy handed and most likely considered "threatening" by a lot of people.

Reason: You have 72 hours to report a data breach to the ICO.

What happened then... the ex employee called the MD the following morning and said he had not downloaded anything, he had been looking for jobs and been on the phone for two phone interviews (hence no answers to calls, texts and e-mails and by the time the letter was received it was out of hours).

The former employee said he would be happy to sign as he hasn't done anything wrong but would like to understand where he was meant to have downloaded anything.

IT e-mailed him, copying in the MD, stating the downloads were made on a MacBook Pro at XX:XX on DD/MM.

Dropbox was installed on his personal laptop (as per BYOD policy), he had not uninstalled it and IT had messed up by not disabling his account immediately. When he looked for jobs, Dropbox synced files that had been changed since the last sync, including the client list.

The MD accepted the explanation, apologised for IT not having disabled the account when they should have; the ex employee confirmed he is aware of both clauses in his contract and said he's happy to sign the undertaking.. the MD said no need.

Two reasonable people, a stupid situation that really was no one's fault, a "threatening letter" but everybody happy after talking.

Every business owner, which I believe most of us here are, should understand what happened and why the business acted in the way it did. The business simply protected itself against potential costs and repercussions of a data breach. It did everything it could to contain the potential data breach, as required by legislation. It acted quickly, again as required by legislation.

Happens up and down the country, every day.

I'm not saying the OP's employer is reasonable but likewise none of us can say that they aren't.
 
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For goodness sake!!

I’m a total know-nothing but even I can see that by saying basically “if you don’t sign it there’ll be unspecified further action” - is just a chancer solicitor trying it on!

What further action could they possibly take, pray tell because we’re all listening....

Simple - refusal to sign an undertaking combined with some evidence (as per my post 107) suffices for a court to grant a hearing as to whether an injunction should be issued or not. Signing the undertaking removes that opportunity from the employer.
 
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cjd

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A situation like this is actually very common.

Either way - back to the case:

The same afternoon their solicitor couriered a letter to the ex employee stating that there a reasonable grounds to believe he is in possession of confidential data and asked for the following two undertakings to be given within 48 hours:

1. He is aware and will honour the confidentiality clause and post employment restriction clause of his employment contract.

2. He agrees to delete all confidential data irrevocably.

Heavy handed and most likely considered "threatening" by a lot of people.

Reason: You have 72 hours to report a data breach to the ICO.

What happened then... the ex employee called the MD the following morning and said he had not downloaded anything, he had been looking for jobs and been on the phone for two phone interviews (hence no answers to calls, texts and e-mails and by the time the letter was received it was out of hours).

The former employee said he would be happy to sign as he hasn't done anything wrong but would like to understand where he was meant to have downloaded anything.

IT e-mailed him, copying in the MD, stating the downloads were made on a MacBook Pro at XX:XX on DD/MM.

Dropbox was installed on his personal laptop (as per BYOD policy), he had not uninstalled it and IT had messed up by not disabling his account immediately. When he looked for jobs, Dropbox synced files that had been changed since the last sync, including the client list.

The MD accepted the explanation, apologised for IT not having disabled the account when they should have; the ex employee confirmed he is aware of both clauses in his contract and said he's happy to sign the undertaking.. the MD said no need.

Two reasonable people, a stupid situation that really was no one's fault, a "threatening letter" but everybody happy after talking.

Every business owner, which I believe most of us here are, should understand what happened and why the business acted in the way it did. The business simply protected itself against potential costs and repercussions of a data breach. It did everything it could to contain the potential data breach, as required by legislation. It acted quickly, again as required by legislation.

Happens up and down the country, every day.

I'm not saying the OP's employer is reasonable but likewise none of us can say that they aren't.

That's all perfectly sensible and a correct use of the deed - although even there it was not actually used. But it's certainly not a normal leaving situation and it's entirely different to the OP's case - as he states it.

On an entirely different track, not signing the deed might make a reference rather difficult, though as they seem to have fallen out it maybe is anyway.
 
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The key words here being -
Courts are obliged to find on the facts and not on a silly collection of 'what-ifs'.

Please re-read what I said. No undertaking + some evidence = hearing for injuction granted. The court will then look at the evidence and decide whether to grant an injunction.

At that point the former employee will have had to attend the hearing, most like have spent money on legal representation and will have stressed for weeks, potentially needlessly.
 
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That's all perfectly sensible and a correct use of the deed - although even there it was not actually used. But it's certainly not a normal leaving situation and it's entirely different to the OP's case - as he states it.

On an entirely different track, not signing the deed might make a reference rather difficult, though as they seem to have fallen out it maybe is anyway.

My point is that for one reason or another, it happens frequently that an employer suddenly believes an ex-employee has retained confidential information.

Re a reference - no. A reference must be given on neutral terms, taking the entire period of employment into consideration.... which is the reason why most employers now only give generic reference confirming dates of employment and position held.
 
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Newchodge

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Please re-read what I said. No undertaking + some evidence = hearing for injuction granted. The court will then look at the evidence and decide whether to grant an injunction.

At that point the former employee will have had to attend the hearing, most like have spent money on legal representation and will have stressed for weeks, potentially needlessly.
I hadn't realised that if there is evidence of a breach of confidentiality and an undertaking has been signed, the ex-employer could not then seek an injunction to prevent further breaches. Does it also mean they cannot seek damages? That seems a bit harsh on the ex-employer.
 
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I hadn't realised that if there is evidence of a breach of confidentiality and an undertaking has been signed, the ex-employer could not then seek an injunction to prevent further breaches. Does it also mean they cannot seek damages? That seems a bit harsh on the ex-employer.

They can seek damages of course. But injunction is only possible, if an undertaking has already been signed, if there is proof that even the undertaking was breached. The undertaking has (almost) equal status to a court order.
 
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kulture

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This is all getting needlessly complex, and anyone can bring in a straw man argument to prove their point in that case.

The simple facts remain that an employee should not sign a document which they do not understand or do not agree with, or which they think is getting them to admit to something that they did not do.

Clearly talking to each other can resolve misunderstandings and simple communication could save a lot of time. I am guessing that a Judge would be happy if such simple communication resolved the case.

Likewise if there has been a clear breach of data the Employer is obliged to make sure that it is contained etc. And again there could be a reason why it would be better for the employee to sign a document.

BUT we can all invent scenarios to back up either situation. In general however it is best to talk, gain an understanding and if necessary get legal advice. Such legal advice would know all the relevant facts and not be built on assumptions and meaningless other cases. Anything else is pointless speculation and indeed poor advice. In the situation claimed by the OP it would be poor advice to sign the document.
 
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The following is interesting reading and may shed some more light on this thread.

From the OP in 2015:

"Two years ago I worked on a project for a company to assist with the invention and development of a device which is now in full production and making a substantial profit for the business.
The device was patented with my name and another member of the team named as inventors.

My question is am I entitled to any revenue from the sale of the device and if so how do I approach the company to stake my claim?"

1. Could this be classed as a disgruntled employee?

2. If you were the employer, would you suspect that there may be a reason for the employee to exact revenge, if he didn't get his way?

I understand that some people will think/say that he should have been paid extra for his input in the patented product, but that's not the point of discussion.

To be clear, without knowing the specific details and NOT taking the OP at face value, as defendants never portray themselves as the guilty party, more facts about the circumstances need to be known, before comments defending each side's arguments can be questioned.

A court and judge will have all documents to base his judgement on.

We (perhaps) have a one sided view with omissions.
 
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The following is interesting reading and may shed some more light on this thread.

From the OP in 2015:

"Two years ago I worked on a project for a company to assist with the invention and development of a device which is now in full production and making a substantial profit for the business.
The device was patented with my name and another member of the team named as inventors.

My question is am I entitled to any revenue from the sale of the device and if so how do I approach the company to stake my claim?"

1. Could this be classed as a disgruntled employee?

2. If you were the employer, would you suspect that there may be a reason for the employee to exact revenge, if he didn't get his way?

I understand that some people will think/say that he should have been paid extra for his input in the patented product, but that's not the point of discussion.

To be clear, without knowing the specific details and NOT taking the OP at face value, as defendants never portray themselves as the guilty party, more facts about the circumstances need to be known, before comments defending each side's arguments can be questioned.

A court and judge will have all documents to base his judgement on.

We (perhaps) have a one sided view with omissions.

If this is related to the current situation you are very close to shedding some light on the matter.

Also, if this is the case, then the employer's contracts are extremely bad as nothing invented during working time should EVER be patented in the employee's name. Ever. There may of course be clause that provides the employer with power of attorney or similar in relation to patents registered in the employee's name during employment.
 
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Newchodge

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The following is interesting reading and may shed some more light on this thread.

From the OP in 2015:

"Two years ago I worked on a project for a company to assist with the invention and development of a device which is now in full production and making a substantial profit for the business.
The device was patented with my name and another member of the team named as inventors.

My question is am I entitled to any revenue from the sale of the device and if so how do I approach the company to stake my claim?"

1. Could this be classed as a disgruntled employee?

2. If you were the employer, would you suspect that there may be a reason for the employee to exact revenge, if he didn't get his way?

I understand that some people will think/say that he should have been paid extra for his input in the patented product, but that's not the point of discussion.

To be clear, without knowing the specific details and NOT taking the OP at face value, as defendants never portray themselves as the guilty party, more facts about the circumstances need to be known, before comments defending each side's arguments can be questioned.

A court and judge will have all documents to base his judgement on.

We (perhaps) have a one sided view with omissions.
Well that is completely brilliant. Base your advice on a 4 year old post about an unrelated matter. You don't even know if the OP is working for the same employer, 4 years on. Really helpful.
 
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The Byre

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The simple facts remain that an employee should not sign a document which they do not understand or do not agree with, or which they think is getting them to admit to something that they did not do.
This!

Unfortunately, there are all sorts of 'experts' that tell businesses how dangerous it is to not employ their expertise. H&S, HR and employment law, data protection, you name it and some quasi-expert comes shooting up from between the floorboards, telling you that if you don't use their services, you may end up having to hand over your first-born male child.

These people will throw up example after example of horror stories that involve businesses that have fallen foul of the law for this and that - they read that online somewhere! (Or as a dumb Texan neighbour of ours used to say "I know it's true 'cos I read me that in a book!")

If you want qualified legal advice on some subject, talk to either a solicitor or a barrister (or in Scotlandshire, a solicitor-advocate) that specialises in that subject. Give that person all the facts and documentation and be prepared to de-trouser about £240 an hour for their advice.

And even then, be prepared to temper that advice with common sense. That is, after all, what the courts do in the end. They look at the facts and come to a common sense conclusion.
 
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