How to Deal With a Workplace Confidentiality Breach in England

As an employer, you likely know the importance of keeping your business’s confidential information confidential. However, there may be occasions when your employee leaks private information about your business, resulting in a data breach. A workplace confidentiality breach may be malicious or accidental, such as using emails and not checking them before sending them. Nevertheless, leaking confidential information is a serious issue and can result in many problems, leading to court claims and even the dismissal of your employee. This article explains how you can avoid these problems by dealing with an employee who has breached confidential information. 

What is a Breach of Confidential Information?

When there has been a breach of confidential information, someone has disclosed your business’ information to another person. Yet, the person who owns the confidential information has not permitted others to know about it.

Examples of breaches of confidential information are:

• sharing details of other employees, such as their address or bank details;
• leaking financial business data; 
• breaching business information, such as information on new products you are due to launch; or
• using another employee’s presentation without their permission. 

What Are Employers’ and Employees’ Responsibilities?

Regardless of whether or not your employee’s employment contract states they have a responsibility not to leak confidential information, they are under a general legal obligation not to disclose it. Furthermore, their employment with you contains an implied duty of fidelity and good faith. 

As an employer, you should ensure that your employees know that a breach of confidential information can have serious repercussions. You should have in place a policy about this that clarifies your rules and the consequences for where your employees carry out a breach of confidential information. 

Furthermore, you can try to prevent your employees’ leaking of confidential information by, for example, placing confidentiality clauses in your employment contracts so your employees know what they must not leak. On that note, you can also use the employment contract to restrict your employees from revealing confidential information when they leave employment with you. 

How to Deal With an Employee’s Breach of Confidentiality

If your employee leaks confidential information at work and commits a breach, it is likely to be a disciplinary offence. However, to establish whether or not this is the case, you will first need to investigate the circumstances of the alleged breach.

1. Investigate the Incident

As an employer, the first action you should take is to investigate what has happened. This may require you to:

• interview other employees;
• take witness statements; and 
• collect evidence.

During the initial investigation, you may feel it is appropriate to suspend the accused employee. However, you should initially consider alternative actions, such as moving them to a different area in the workplace. 

The results of an investigation will help you decide whether you need to take formal action, such as disciplinary action or whether your employee has simply made a genuine mistake. 

2. Send a Letter to Your Employee

If, after your initial investigation, you believe your employee has made an honest mistake, you may write to them to outline what has happened, stressing the importance of keeping confidential information confidential. In addition, you may wish to warn your employee that if they breach confidential information again, you will take disciplinary action.

3. Take Disciplinary Action

If the breach is sufficiently serious, you may wish to take disciplinary action against your employee for breaching confidential information. If you decide to do so, you must follow your standard disciplinary policy, which must be fair and just. 

4. Make a Legal Claim

Making a legal claim against your employee for their breach of confidentiality may be possible. For example, you may decide to initiate a claim where they fail to stop misusing the confidential information, or your business may suffer considerable harm from their breach. If successful, the court will determine whether damages are appropriate or whether an injunction to stop the confidential information being used any further by your employee is suitable. 

When an employee leaks confidential information, you will typically take action against it. However, there are times when your employee may have a right to reveal confidential information meaning you cannot take action against them for revealing it. This includes instances where your employees release information:

• to report a criminal or regulatory offence;
• for tax purposes; and 
• upon a court’s request.

Key Takeaways

You must deal with a workplace confidentiality breach swiftly and appropriately. First, you should investigate the situation to establish whether a breach occurred intentionally or accidentally. This will affect how you deal with it, such as taking further disciplinary action by writing a letter of warning to your employee. Furthermore, you may even see it as appropriate to dismiss your employee or take legal action. 

If you need help understanding how to deal with an employee breaching confidential information 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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