How important are post employment confidentiality clauses?

Confidentiality…

How important are post employment confidentiality clauses in Early Years?

Don’t breach my confidentiality! is a plea many an employer makes when they take on a new member of staff. The question of whether employees in general should have post employment restrictions in their standard terms and conditions has come up again this week.

In Early Years’ your staff have access to all range of confidential, sensitive and critical information about your parents, children and in some cases fellow employees.

Here’s just a few off the top of my head:

• Which parents are living together
• Which children are subject to a Child Protection Plan
• What allergies a child has
• What SEND status a child is
• Who’s has an allegation about them
• What’s on someone’s DBS certificate
• What’s on someone’s Statement of Fitness for Work.

The list can go on and on… Can you imagine what could happen if confidential information was shared. The consequences wouldn’t bear thinking about.

Here at Redwing we’ve been using post employment restrictions (no poaching, no competing, no soliciting) where applicable and not as standard T&C’s. Many contracts just don’t need them, for example your Nursery Nurse is hardly going to poach her colleagues to join her in her new setting, and as she’s not a Manager its not considered good practice for her to be restricted in this way.

Increasingly though staff who leave an Early Years’ setting are breaching the confidentiality of their previous employer. It’s becoming a problem that makes us now wonder whether the confidential post employment clause needs to be given more focus.

In the world of employment most employers seek to protect their confidentiality. It’s often customer lists, intellectual know how, trade secrets from the new employer (often the competition) exploiting this info when the ex-employee joins them. This is one of the reasons why sales people often have garden leave clauses in their T&Cs.

Many employers contain confidentiality clauses in their T&Cs. They are good idea, but if you don’t use them it shouldn’t matter as confidentiality is considered to be an implied term.

Now what do I mean by a implied term?

An implied term is one that is too obvious to state. An expressed term however, is one that isn’t obvious and needs to be stated. So protecting the confidentiality of your previous employer is considered obvious and implied, but how much notice you have to give is not obvious and has to be expressed.

In a world where we like to be specific with our staff and set out our expectations clearly can we do more? Well here at Redwing we think we can.

Here’s my thoughts:

1. Find out about someone’s values in selection interviews. If you are about to hire a person who likes to gossip, and talk about other people behind their backs, Early Years is not a place for them.
2. Ask references, whether the ex-employee was confidential. They may not answer but you can ask.
3. Induct staff carefully about what it means to be confidential in an Early Years’ setting and the consequences of breaches.  Case Studies would be good here and in many case would be cross reference to safeguarding.
4. Use a robust confidentiality clause in T&Cs, advise explicitly that this will be post employment as well as during employment.
5. When someone leaves perhaps we should remind them of their implied duty of confidentiality to the ex-employer post employment when we write to acknowledge their resignation. A paragraph carefully worded and assuming compliance would be a good idea, one threatening an ex-employee would not. Tone is everything.
6. If a breach of confidentiality occurs, write to the ex-employee advising that they are restricted by a post employment restriction in terms of confidentiality and ask them to refrain from further breaches or you will seek to obtain an injunction.

Hope this helps get you thinking about confidentiality. If we can help with any of the above, please get in touch info@cbctest.co.uk