The saying “Information is Power” has practically found its way into the general sphere of human endeavors; particularly the employment sector. Information in the employment sector would refer to trade secrets, clientele, business models and strategies, and client information among a host of others which are usually sensitive information and priced secrets. Most of this information is usually an edging factor against competitors and a leak or release of such information to non-members of the organization could occasion a bad reputation for the organization. In today’s modern workplace, where information is a valuable asset, maintaining confidentiality is of utmost importance. The duty of confidentiality is a legal and ethical obligation that employees have to protect sensitive information entrusted to them by their employers, clients, or colleagues.
This article explores the scope of the duty of confidentiality at the workplace, including its legal framework, key considerations, and potential challenges.
EMPLOYER-EMPLOYEE RELATIONSHIP; RIGHTS AND OBLIGATIONS
Employment relationships oftentimes involve the exchange of sensitive information and disclosure of company trade secrets and facts important to the business interests. It, therefore, becomes imperative to achieve a balance of employer and employee interests and due protection of pertinent disclosures.
Employers, on the one hand, expose members of their staff to valuable trade secrets and information upon employment and expect that such information, during, and after the course of employment, be treated and preserved with utmost sanctity. This information may be revealed through several means including but not limited to conversations with one’s spouse, casual talks with colleagues, sessions with one’s lawyer upon a perception of a wrongful and illegal dismissal[i]
Employees, on the other hand, may not fully appreciate the nature of the information in their possession, nor the extent of secrecy expected by the employers regarding such information that they have been made privy to in the course of their employment. Some of the employees make use of such information by divulging them to competitors against the organizations, thereby exposing their employers to huge reputational or financial losses.
The duty of confidentiality imposed is double-fold. It is expected that the employer maintains a confidential nature of the information about the employee as may have been obtained in the course of the recruitment process or during the course of the work of the employee with the organization. The employee is also not left out as he/she also is saddled with the sacred responsibility of keeping information about the employer as confidential as it deserves. This duty of confidentiality is however not absolute as shall be discussed later on in this article.
It is pertinent to state at this point that except if there are confidentiality clauses stipulated in the contracts of employment or Non-Disclosure Agreements duly executed by the employer and employee, such employee will not be held liable for revealing any sort of information as parties are only bound by terms agreed upon. There are however some specific sectors that are under statutory obligations of confidentiality[ii].
The duty of confidentiality only arises where any of the following has been set in motion from the inception of such relationship:
A. Employment Contracts: Confidentiality obligations are often included in employment contracts or agreements. These contracts define the scope of confidential information and outline the consequences of breaching confidentiality. Where this has been set in perspective and duly executed, parties are wary as to doing things that may occasion a breach of this duty.
B. Statutory Obligations: Certain industries or professions have specific laws or regulations that impose confidentiality obligations. For example, healthcare professionals are bound by patient confidentiality laws.
C. Trade Secrets and Intellectual Property: Employers have a vested interest in protecting trade secrets and intellectual property from disclosure or unauthorized use.
SCOPE OF CONFIDENTIAL INFORMATION:
As much as there is information that the employment scope perceives to be confidential, not all pieces of information carry confidentiality status and no lawsuits can emanate from the divulging of such information. For the purpose of this article, the following have been enunciated as information that passes as confidential. The list is not exhaustive and confidential information may vary from organization. Find below, a general list of items that may qualify as confidential information:
Types of Confidential Information
Confidential information can include
- trade secrets,
- financial data,
- customer lists,
- marketing strategies,
- research and development plans, and
- personal employee information.
Non-Disclosure Agreement is a contract by which one or more parties agree not to disclose confidential information that they have shared with each other as a necessary part of doing business together.[iii] Employers may require employees to sign non-disclosure agreements (NDAs) to ensure the protection of confidential information. In the same vein, under the Non-Disclosure agreements, employers also have a duty to not disclose personal information about the employee except in situations in which the law will permit.
Limitations on Confidentiality:
Confidential information may be revealed and justified in any of the following circumstances where the information concealed is:
- in breach of the country’s security,
- or in breach of law,
- including statutory duty,
- destructive of the country or its people, including matters medically dangerous to the public,
- doubtless other misdeeds of similar gravity[iv]
The confidential status of information may be waived or the need to have it divulged may arise in some circumstances. There may be instances where employees are legally obligated to disclose confidential information, such as in response to a court order or when reporting illegal activities. The employers are also not exempt from divulging such information.
MEASURES TO UPHOLD THE DUTY OF CONFIDENTIALITY IN A WORKPLACE
The truth across the board, is that so many organizations do not see a need to ensure best standard practices as it applies to employment and labor. These organizations do not see the need to have the most basic of documents for the organization. As earlier stated, in the absence of an employment contract or a Non-Disclosure Agreement to regulate the sort of information that may be classified as confidential or that which may not be an employer or employee is not bound by the duty of confidentiality, except where such duty is statutorily conferred upon the employer/employee. The below measures may be taken to create awareness and also to regulate the scope of the duty of confidentiality, regardless of the sector:
- Access and Disclosure: Employees should only have access to confidential information on a need-to-know basis. Employers must implement appropriate security measures to prevent unauthorized access or disclosure.
- Handling and Storage: Employers should establish protocols for handling and storing confidential information securely, including password protection, encryption, and restricted access.
- Training and Awareness: Employers should provide regular training to employees regarding their confidentiality obligations, including the consequences of breaching confidentiality.
- Third-Party Relationships: Employers must ensure that third-party contractors or vendors who have access to confidential information also adhere to strict confidentiality standards.
CHALLENGES AND POTENTIAL BREACHES
As much as the above measures may be taken to prevent a breach of the duty of confidentiality, there are circumstances, where some persons may deliberately choose to breach this duty, or the information may get into public purview by other means. Some of these are listed below:
Employee Misconduct: Employees may intentionally or unintentionally breach confidentiality, leading to potential legal and reputational consequences for the employer.
Technology and Cybersecurity: The digital age has introduced new challenges in maintaining confidentiality, such as data breaches, hacking, and unauthorized access to electronic systems.
Social Media and Online Presence: Employees’ online activities can inadvertently lead to breaches of confidentiality if they disclose sensitive information without prior consent on social media platforms or through personal blogs.
CONSEQUENCES OF BREACHING CONFIDENTIALITY:
Legal Remedies: Employers may seek legal remedies, such as injunctions or damages, against employees who breach their duty of confidentiality.
Termination of Employment: Breaching confidentiality can result in disciplinary action, including termination of employment.
Reputational Damage: Breaches of confidentiality can harm an employer’s reputation and erode trust with clients, customers, and business partners.
The duty of confidentiality at the workplace is a critical aspect of maintaining trust, protecting sensitive information, and upholding ethical standards. Employers must clearly define the scope of confidential information, implement robust security measures, and provide training to
[i] Aero Contractors Co. of Nigeria Limited v. Mr. Akintayo Akinwunmi Akingbehin (NICN/LA/123/2013) judgment delivered on June 16, 2015.
[ii] Section 192 of the Evidence Act 2011 and Rule 19 of the Rules of Professional Conduct state that lawyers have a responsibility and a duty to treat client information with utmost confidentiality, privilege, and secrecy.
[iv] Belot v. Pressdram (1973), All ER 241
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