Update – Confidentiality

February 14, 2019, By

In the case of Linklaters LLP v Mellish, the High Court considered whether a former employee’s duty of confidentiality outweighs the public interest in the publication of information on the employer’s current culture and the position of women in the workplace.

The Defendant was formerly the Director of Business Development at Magic Circle firm, Linklaters. He had been dismissed on six months’ notice with an ex gratia payment. His contract of employment contained an express confidentiality obligation which applied post termination. Shortly after leaving, he told the firm that he intended to share his impressions of the “current culture” of the firm and its ‘”ongoing struggle” with women in the workplace’ and that he would be giving interviews (although he did not say who with) in the first two weeks of February 2019.

The Claimant was granted an injunction, until 11 February 2019, to restrain the Defendant, 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 however, seek to restrain the Defendant from sharing in general terms his impressions of the firm’s current culture. The High Court accepted that there was a real risk of publication which was sufficient to justify the interference with the Defendant’s freedom of expression, and held that it was likely that Linklaters would establish at trial that publication should not be allowed. The information fell within the contractual duty of confidence, it was not in the public domain, and the interests of the third parties also bolstered the case. While there may be a legitimate public interest in firms performing their moral and social duties to their staff, Lord Justine Warby ruled that that did not override the legitimate interest in maintaining confidentiality. The Defendant was also ordered to disclose the identities of those he may have already disclosed the information to.
It is an interesting outcome given the recent focus on the treatment of female employees in the workplace. The case has been listed for a full hearing on 11 February 2019.