What is Workplace Confidentiality in England and Wales?

Running a business means that you will probably handle confidential information. This could be, for example, confidential data about your employees or information about your customers. There are laws about confidential information, and these apply in both workplace and employment contexts, as well as in commerce, industry, government, and personal contexts. Therefore, you must exercise workplace confidentiality as an employer to ensure that you handle confidential information lawfully. Not doing so could result in a fine, loss of reputation, and damage of trust between you and your employees or your customers.

This article will explain workplace confidentiality. Firstly, it will explain what confidential information is and confidential information in the workplace. It will then explain how confidential you must protect information and explain methods to maintain workplace confidentiality.

What is Confidential Information?

Confidential information is information which is:

• not commonly known and in the public domain;
• has value and importance; and
• if revealed, would have a detrimental effect on the business or positively impact a competitor.

For information to be considered of value and importance:

• the value does not need to be in terms of financial, monetary or commercial importance; and 
• it must be developed and identifiable, rather than vague.

What is Confidential Information in the Workplace?

Any confidential information you come into as part of your business is subject to workplace confidentiality. Workplace confidentiality means ensuring that you protect confidential workplace information.

There are three main types of confidential workplace information:

1. your employee’s personal information;
2. your customer’s personal information; and
3. ‘proprietary information’, otherwise termed ‘business information’ or ‘trade secrets’.

Employee’s Personal Information

As an employer, you need to keep your employees’ personal information confidential. You may have your employees’ personal information, such as their address and bank details. However, you may also collect other personal information to monitor and assess their performance. Gathering confidential information about your employees may also help detect and prevent crime. You may do this through, for example:

• recording conversations;
• searching bags;
• monitoring emails; and 
• use of CCTV.

How is Confidential Information Protected?

Confidential information is protected where it is sensitive data and recorded information, no matter what form it is recorded in. This includes when it is recorded in peoples’ minds but not written down, or where it is not protected under other protections such as intellectual property laws. 

Confidential information is protected to prevent those who have it from taking unfair advantage. The duty of confidentiality is a legal duty that requires those who receive confidential information to not pass it to another:

• without consent of the owner; and 
• where the person concerned knows or should have known that the information is confidential.

In the workplace, you must treat confidential information with sensitivity. You can only allow those authorised to have access to it. As an employer, the law requires you to protect workplace confidentiality, such as through abiding by data protection laws. 

The General Data Protection Regulation (GDPR) is in place to give employees and customers some control over the way businesses process their data. You should look after personal data, which means you must not keep it for longer than needed. You must also store it securely. Where you store it on software, you must use the correct level of security. If you do not comply with data protection laws, you could face a significant penalty. 

How to Ensure Workplace Confidentiality

You must ensure workplace confidentiality in terms of the confidential information you hold. Not only do you have a legal duty, but it can help build trust between you and your employees. Ensuring workplace confidentiality also helps to protect your reputation both with customers and employees. If there is a confidentiality breach in your workplace, sorting it out could be very time-consuming. It could also be severe, such as if someone uses confidential information, for example, for fraud or blackmail. 

Aside from your legal duties, there are other ways that you can help ensure workplace confidentiality as an employer. For example, you could include a confidentiality clause in contracts with your:

• employees;
• suppliers;
• customers;
• contractors; and
• service providers.

Similarly, you can have a non-disclosure agreement. Having a confidentiality clause or non-disclosure agreement with your employees can help protect your business secrets. If they work for a new employer or were part of any dispute, they must maintain confidentiality. Non-disclosure agreements also apply when sharing your business information with people you have not yet contracted with. For example, this may be a new or prospective employee, contractor, or investor.

When Can an Employer Break Workplace Confidentiality?

Whilst it is essential as an employer to respect workplace confidentiality, there are times when you may break it and are encouraged to do so. For example, you may need to report something to law enforcement authorities, so it is good practice to have a workplace confidentiality policy containing situations where this may apply so that your workers are aware. This could include where:

• an employee may be at risk of harm who pose a threat to others;
• the law requires you to share it;
• someone did not comply with a regulation; or
• the 1998 Public Disclosure Act allows you to. 

Key Takeaways

As an employer, you must ensure workplace confidentiality. This means you must protect the confidential information you handle through your business and workplace. This not only applies to your employee’s confidential information but, for example, to your customer and suppliers too. Confidential information in the workplace is subject to laws to ensure workplace confidentiality, such as the GDPR, and not abiding by this can result in a large fine. There are also ways that you as an employer can help improve workplace confidentiality, such as through the use of confidential clauses and by having a workplace confidentiality policy.

If you need help with understanding workplace confidentiality in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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