Do employers have a duty of confidentiality to employees?

Secretary94

Do employers have a duty of confidentiality to employees?

 I was dismissed a while back.  I thought the reasons were unfair and I put in a claim for unfair dismissal. 

 Before my claim got to the Tribunal, my ex-employers offered to settle.  I agreed, but that meant I had to sign a 15-page Settlement Agreement, agreeing my dismissal was fair and agreeing not to bring any further claims.  It was agreed that my employers would not provide a reference.

An entire section of the Settlement Agreement said that I had to keep my work, my dismissal and the pay-out completely confidential.

 

The Agreement also said that the company had ‘no implied or express duty of confidentiality to  me’. 

 

My solicitor questioned this clause and the company said that as it was quite large it could not possibly have control over its staff, many of which knew the reasons why I had been dismissed.

 

The solicitor I used has now closed down and I am applying for a new job and am worried that my old employers could just send over a scanned copy of my HR file to new employers. 

 

So despite what was said in the Settlement Agreement, do employers have some form of legal duty of confidentiality to an employee?

Thanks in advance.

Hoenir

Secretary94 said:

It was agreed that my employers would not provide a reference.

The matter is closed then. Though your new employer may wonder why not. You yourself have to agree to them requesting one in the first place. 

Secretary94

I don't think it is as easy as that Hoenir. 

New employers will see on my CV that I worked for Company X for a few years and could just take the liberty of pinging over an email to Company X to check that I actually worked there.   I cannot stop them. 

What I need to know is whether Company X is legally obliged to ignore such a request, or just confirm the dates I worked there (but nothing else), or whether in law there is nothing to stop them sending over copies of warnings and my dismissal letter.

The web is not helpful - what I need is a court decision or actual law which I could rely on relating to employee confidentiality.

HampshireH

I have no case law etc.

But are you going to explain the absence of a reference option for your last place of employment to your new Company? What will you day when they ask for details.

Your old company shouldn't be disclosing confidential paperwork to your new company. It wouldn't be proportionate to a reference request.

Honestly is always the best policy else you could come unstuck later down the line.

Secretary94

Thanks HampshireH

If there is a fixed law which restricts employers sending out copies of warnings/dismissal letter etc then I intend to contact the firm that sacked me with a nice letter asking them for a reference and trying to agree its terms and suggesting that because of the law restricting them on employee confidentiality it would make sense to agree wording now.  

I would ask for a reference giving dates of employment and that I worked as a team secretary in sales and even that I was dismissed but didn't give a reason - I can handle the whys that with new employers.

I just need some assurance that my old company isn't going to send out everything they have in the files.

Undervalued

Secretary94 said:

Do employers have a duty of confidentiality to employees?

 I was dismissed a while back.  I thought the reasons were unfair and I put in a claim for unfair dismissal. 

 Before my claim got to the Tribunal, my ex-employers offered to settle.  I agreed, but that meant I had to sign a 15-page Settlement Agreement, agreeing my dismissal was fair and agreeing not to bring any further claims.  It was agreed that my employers would not provide a reference.

An entire section of the Settlement Agreement said that I had to keep my work, my dismissal and the pay-out completely confidential.

 

The Agreement also said that the company had ‘no implied or express duty of confidentiality to  me’. 

 

My solicitor questioned this clause and the company said that as it was quite large it could not possibly have control over its staff, many of which knew the reasons why I had been dismissed.

 

The solicitor I used has now closed down and I am applying for a new job and am worried that my old employers could just send over a scanned copy of my HR file to new employers. 

 

So despite what was said in the Settlement Agreement, do employers have some form of legal duty of confidentiality to an employee?

Thanks in advance.

Sorry but if you weren't happy with any of the terms of the settlement agreement then you shouldn't have signed it!

You had the option of attempting to negotiate  terms you preferred or continuing with your tribunal claim. Frankly it sounds as though you were in a very weak position and unlikely to win your case.

For the agreement to be valid you must have received independent legal advice about the implications. If you were badly advised then any claim is against the solicitor, not you former employer. By law, solicitors have to have special insurance in place if they handle settlement agreements.

HampshireH

Secretary94 said:

Thanks HampshireH

If there is a fixed law which restricts employers sending out copies of warnings/dismissal letter etc then I intend to contact the firm that sacked me with a nice letter asking them for a reference and trying to agree its terms and suggesting that because of the law restricting them on employee confidentiality it would make sense to agree wording now.  

I would ask for a reference giving dates of employment and that I worked as a team secretary in sales and even that I was dismissed but didn't give a reason - I can handle the whys that with new employers.

I just need some assurance that my old company isn't going to send out everything they have in the files.

They won't care for your nice letter. It probably wouldn't even be acknowledged if you cost them thousands in legal fees as well as a settlement fee. You're probably quite an inconvenience to them at this point. 

As I said I cannot cite a law. 

You should be honest with your new company and any issues won't arise

foxy_squirrel

Just be honest with your prospective employer. I was asked to leave a previous job at the end of my probation period (everyone else was retained) I did not get on with the boss, clash of personalities, lets leave it there. I walked out, went straight to see an old colleague and they got me an interview as a Xmas temp where they worked. At my interview the manager asked why? I had left my previous employment, I was honest and said I did not get on with a couple of members of staff, not untrue. Their answer, you will fit right in here then and laughed. I worked hard ,proved my worth and worked for them for nearly 11 years until made redundant by COVID. Its about you, not about who you get on with, or dont for that matter. Unless you broke the law, I doubt you will have a problem getting a new job.

elsien

In the nicest possible way,  you are overthinking your importance to the old company.

There is no benefit to them at all in going to the effort raking out old files and dismissal letters to scan and send out. It’s not going to be happening. 

You need to be more concerned about your lack of a reference and how you are going to explain that.  You have a settlement agreement that says they won’t give you a reference. What makes you think that if you send them a letter they are going to start agreeing new terms now?

DullGreyGuy

The Data Protection Act 2018 (aka GDPR) applies to all personal data irrespective if that's gathered from you as a customer, an employee or any other relationship. At the same time the DPA doesn't say that at no point can anyone ever share anything. 

Almost certainly your new employer is entitled to request and process the data under a "legitimate interest", to ask for your consent instead could cause them more problems than not asking for it because of the imbalance of power in the relationship. 

It then comes to the question of if your former employer can share it, this may come down to consent and some leaver forms deal with this explicitly, it can also be in employee Privacy Notices and other mechanisms but its unlikely they can rely on purely a "legitimate interest".  There is however also a carve out for references given "in confidence" which removes both the need for consent or the need to disclose its content. Pre 2018 it was only a carve out for one of the parties. 

Back to reality rather than the hypothetical... what interest does your former employer have of protecting your new employer from you? Unless you are applying to another part of the same Group then at best they owe them nothing and at worst they're a competitor and so they're more likely to wish bad employees on them than try to save them from them. 

If you feel that they have breached their compromise agreement you could cost them thousands more in legal fees... why'd they risk that to help a random other company? The urban myth says you cannot give bad references, the reality is companies don't give bad references because its not worth the pain and hence they are either purely factual - start date, end date, job title on leaving - or they just don't give a reference which these days is considered code for it would have been bad but we cannot be sued for not giving one. 

prowla

Under GDPR a company can only keep data for legitimate reasons, which certainly don't include malicious references; you also have a right to be forgotten. You may wish to read up on that.

Many companies wil only confirm that someone worked there for the given time, rather than give details, so it may not be an issue.