Confidential information is a very important asset for your business. Your client lists, strategies and plans are essential to the success of your business. In this article, we look at the legal and practical steps you can take to ensure confidentiality in the workplace.

Commencement of Employment

First, it is important to educate your employees about confidential information when you hire them.  Depending on the nature of your industry and roles, there may be specific regulations in place on confidentiality of client information or privacy laws and policies. Be clear on what kind of information is confidential and what can and cannot be discussed outside the workplace.

Secondly, your employment agreements should include detailed confidentiality clauses which set out your employees’ obligations. These clauses should clearly indicate that the confidentiality obligations operate even after the employee leaves their job. Although employees automatically have common law obligations around confidentiality (which do not need to be written into any agreement), it is much easier to enforce a breach of confidentiality clause. 

During Employment

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

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

You should also discourage employees from using their personal devices to access confidential information and have a clear policy around this issue.

Additionally, 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. You can then check if the employee has emailed anything to their personal email or downloaded client files without permission.

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 that 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. Employees also have further obligations under the Corporations Act 2001 (Cth). This means, for example, that employees cannot use confidential information to gain an advantage against the ex-employer.

If employment has ended because of a disagreement or dispute, 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 has ended, you can send them a letter of demand requesting that they:

  • stop using any confidential information; and
  • sign an undertaking to delete and/or return any relevant confidential information. An undertaking is a legal promise to do something or to not do something.

An employment or disputes lawyer can help you in putting together this letter of demand and undertaking.

If the employee does not accept your requests and you urgently need to stop their use of your confidential information, 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 full matter is heard in court. The court considers several matters when assessing whether to grant an interlocutory injunction.

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

Key Takeaways

There are a number of steps you can take as a business owner to ensure confidentiality in the workplace. These range from effective drafting of employment contracts, to putting in place internal confidential information policies.

LegalVision’s employment lawyers can assist you with each step in this process. Get in touch on 1300 544 755 or fill out the form on this page. 

Edith Moss
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