How Can I Ensure Confidentiality in the Workplace?

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Table of Contents

• Commencement of Employment
• During Employment
• Termination of Employment
• Post-Employment Breach of Confidentiality
• Key Takeaways
• Frequently Asked Questions

Preserving confidential information such as your business’ client lists, strategies and plans is crucial for any business. Therefore, you must promote confidentiality in the workplace. By putting in place workplace confidentiality policies, you can help protect any private information your business holds. This article will take you through how to ensure workplace confidentiality.

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Commencement of Employment

Educating your employees about confidential information when you hire them is important. Depending on your employee’s specific roles and the nature of your industry, you may put specific regulations in place to protect: 

• client information;
• content that privacy laws protect; and 
• workplace policies. 

You should be clear about precisely what kind of information is confidential and what your employees can and cannot discuss outside the workplace.

Secondly, your employment agreements should include detailed confidentiality clauses which set out your employees’ obligations. These clauses should indicate that the confidentiality obligations operate even after the employee leaves the business. Although employees automatically owe common law confidentiality obligations (which you do not need to write into any agreement), it is much easier to enforce a breach of confidentiality clause than to rely on these common law obligations.

During Employment

You can take several practical steps during a worker’s employment to protect your confidential information. These include:

• making sure all emails and folders are password protected;
• only providing access to relevant confidential information; and
• not allowing employees to take files home without permission.

Additionally, you should set up a clear and legally compliant surveillance policy to monitor potential wrongdoing. For example, your policy may allow you to monitor an employee’s work email or keep track of what they are printing. Additionally, you can check if the employee emails anything to their personal email or downloads client files without permission.

However, if the employee continues to breach confidentiality, you may need to take more severe measures. For example, you may have to:

• terminate their employment;
• request an injunction from the court to stop them from using the information or continuing to breach confidentiality; or
• seek civil damages to recover any financial loss that has occurred as a result of the breach.

If the employee’s actions cause financial loss, you will be unable to deduct this loss from their salary without their explicit consent. 

Termination of Employment

Your employment agreements and workplace policies should have clear guidelines on what confidential material your employees must return once they leave their job. This may include:

• returning company property that has confidential information on it (e.g. a laptop); or
• agreeing to delete any confidential information the employee may have on their personal devices.

On their last day of employment, make sure you:

• disconnect the employee’s access to email and other confidential information; and
• remind them of their ongoing confidentiality obligations under their employment contract.

Suppose the employment ends because of a disagreement or dispute. In that case, you might want to think about entering into an exit deed or deed of settlement with the employee, which reiterates their confidentiality obligations.

Post-Employment Breach of Confidentiality

If you believe your employee has breached their confidentiality obligations after employment ends, you can send them a letter of demand. In this letter, you might request that they:

• stop using any confidential information; and
• sign an undertaking to delete or return any relevant confidential information. 

Suppose the employee does not accept your request, and you urgently need to stop their use of your confidential information. In that case, you can apply for an interlocutory injunction with a lawyer’s help. This is an order the court can make to temporarily stop someone from doing something before the court hears the matter. The court considers several matters when assessing whether to grant an interlocutory injunction.

If the matter is less urgent, a lawyer can help determine whether you should commence a civil action for an injunction and breach of confidentiality.

Key Takeaways

You can take several steps as a business owner to ensure confidentiality in the workplace. This includes:

• effective drafting of employment contracts;
• putting in place internal confidential information policies; and
• reminding employees of their confidentiality obligations following termination.

However, you must ensure you implement these actions proactively, as the consequences of breaching confidentiality can be severe.

If you need assistance developing confidentiality policies in your workplace, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions