The appropriate use of confidentiality agreements in the employment context has come under a lot of scrutiny given the #MeToo campaign; a recent case illustrates how the courts may approach the issue of enforceability.
In Linklaters LLP v Mellish, Linklaters was granted a temporary injunction to restrain the defendant, its ex-global director of business development, from disclosing certain confidential information obtained from, and relating to, his employment, which Linklaters contended was confidential information relating to partners and/or employees of the firm and protected by express duties of confidence owed to it by the defendant, pursuant to his contract of employment. (Linklaters did not seek to restrain the defendant from publicising in general terms his ‘impressions of the current culture at Linklaters’.)
Following the termination of his employment, the defendant had indicated that he would give interviews concerning the ‘current culture’ at Linklaters in respect of women in the workplace, as demonstrated by three specific incidents. The Queen’s Bench Division held that there was clear evidence of a threat or intention to give interviews for publication about matters that had come to the defendant’s attention in the course of his employment, that the likelihood that Linklaters would succeed at a trial was sufficient to justify injunctive relief and that the rights of the third parties involved (in particular, employees and ex-employees who had raised grievances with an expectation of confidentiality) bolstered the case in favour of granting an injunction.
The right approach for the court to take, when faced with a contest between public interest considerations and a contractual duty of confidence, was to ask itself not just whether the information was matter of public interest, but whether, in all the circumstances, it was in the public interest that the duty of confidence should be breached. While there may be a legitimate public interest in firms performing their moral and social duties to their staff, this did not override the legitimate interest in maintaining confidentiality. There might be cases in which the details of individual acts of alleged or establish misconduct, combined with one another, created a compelling picture of persistent or habitual wrongdoing, serious enough to satisfy the relevant tests. In some cases, the public interest in correcting misleading public statements could come into the picture. However, there was no such evidence in this case.