Did a former employee's duty of confidentiality outweigh the public interest in the publication of information on the employer's current culture and the position of women in the workplace?
Yes, held the High Court, in the case of Linklaters LLP v Mellish.
The Defendant was a former director of the Linklaters, having been dismissed on six months' notice with an ex gratia payment. His contract contained an express confidentiality obligation. 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', referring to three specific examples, and that he would be giving interviews (although he did not say who with).
Linklaters obtained an injunction to restrain publication to protect the identities of the complainants and the staff members concerned. 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, 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.
Thanks to James English of Ward Hadaway for preparing this case summary.