Contractual confidentiality clause outweighed the public interest in knowing about the "ongoing struggle" for women in the workplace

Court of Appeal clarifies scope of legal privilege

A City law firm has successfully obtained an interim non-disclosure injunction to protect the identities of employees who had raised grievances about sexual assault. The interim injunction was sought against a former employee who intended to share his impressions of the “current culture” of the law firm and its “ongoing struggle with women in the workplace”. It was held that the information the former employee sought to share fell within his contractual duty of confidentiality and, whilst there may be a public interest in ensuring businesses are performing their social and moral duties towards their employees, this did not override the duty of confidence.

Facts

In the case of Linklaters LLP v Mellish, following termination of his senior role within Linklaters, Mr Mellish contacted senior members of the firm informing them of his intention to “share [his] impressions of the current culture at Linklaters” and the “ongoing struggle Linklaters has with women in the workplace”. He went on to state that he would be giving interviews and that he had identified three specific examples which he would be using to “demonstrate Linklaters’ culture”.

Linklaters applied for an interim injunction on the basis that all three examples which Mr Mellish sought to disclose included confidential information which related to the identity of those who had raised internal grievances and the employees who were the subject of the grievances. Mr Mellish’s contract contained a clause prohibiting him from disclosing confidential information gained in the course of his work. Linklaters asserted that to use this information would be contrary to Mr Mellish’s contractual duty of confidentiality. Linklaters did not however seek to prevent Mr Mellish from publicising his “impressions of the current culture at Linklaters” in general terms.

In order to be successful in its application for an interim injunction, Linklaters had to prove:

  1. The information has a necessary quality of confidence;
  2. The information had been imparted to, or acquired by, Mr Mellish in circumstances importing an obligation of confidence; and
  3. Mr Mellish threatened or intended to misuse the information.

Outcome

The court granted the application on the basis that there was clear evidence of a threat or the intention of Mr Mellish to give interviews about matters that came to his attention during the course of his employment. The judge considered that it was difficult to see how Mr Mellish was going to illustrate his points in respect of the three examples without compromising the identities of the individuals, who had a legitimate expectation that what they said as part of the internal grievance process would be kept confidential.  There were strong policy reasons for upholding those legitimate expectations, which had ultimately bolstered the case in favour of granting the injunction. The judge therefore asserted that the information Mr Mellish sought to disclose was inherently sensitive and confidential in nature and so fell within his contractual duty of confidentiality.

Whilst it was acknowledged that there is a legitimate public interest in large firms performing their social and moral duties towards their staff, it was not believed that Mr Mellish’s desire to talk generally about the culture of Linklaters would be enough to justify disclosure of otherwise sensitive confidential information in this case.

Since the interim injunction was granted, Mr Mellish has undertaken not to disclose the information and to destroy various confidential documents.

Comment

This is an interesting decision in that it takes a fairly wide view as to what amounts to confidential information gained during the course of employment and is therefore a helpful decision for employers.  That said, it must be right in principle that employees should be able to expect that details of their identity and grievances raised by them will be kept confidential (save for limited exceptions such as where an employee pursues a Tribunal claim and details of the grievance and individual are relevant).    

Contact our experts for further advice

View profile for Rachel CollinsRachel Collins

Search our site