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Injunction Awarded to Prevent Ex-Director of Law Firm from Publishing Confidential Information about the Workplace

In the recent case of Linklaters LLP v Mellish [2019], the High Court has ordered an injunction to prevent a former director of Linklaters from publishing details about the firm’s “current culture” and its “ongoing struggle” with women in the workplace.

The Defendant was a former director of Linklaters who had been dismissed on six months’ notice with an ex gratia payment. His contract of employment contained an express confidentiality obligation. After leaving his employment, the Defendant told the firm that he intended to share his impression of the firm’s culture and the position of women in the workplace, referring to three specific examples. He also informed them that he would be giving interviews on his experiences.

Linklaters applied to the High Court for an injunction to prevent this. The injunction has been granted for a short time in order to protect the identities of the claimants and the staff members involved. The High Court held that the rights of the third parties and claimants involved in this case outweighed the Defendant’s right to freedom of expression.

The information concerned (and now restricted by the injunction) related to internal grievances that had occurred whilst the Defendant was part of the firm. The court confirmed that such grievance processes are confidential in nature and those interviewed as part of grievance processes are entitled to expect that what they say will be kept confidential. On a balance of interests, the court found that there were strong policy reasons for upholding the legitimate expectations of confidentiality. These reasons included encouraging “genuine complainants to come forward rather than risk having sensitive material of the kind in issue here made public by a third party, against their wishes and (on the evidence) without consultation”.

The judge also commented that whilst the application for the injunction was “partly motivated” by Linklater’s concern about reputational damage, it was not the “sole or main purpose” behind it. The focus on the rights of third parties to confidentiality regarding the sensitive information concerned bolstered the application in favour of Linklaters.

The Defendant has also been ordered to disclose the names of any journalists or other third parties to whom confidential information had been disclosed.

This case follows recent discussions about the appropriateness of confidentiality clauses, especially in the context of settlement agreements and in instances of sexual harassment. It appears that when considering applications for injunctions, the courts will look at the nature of the information to be disclosed along with the identity of the individual attempting to disclose such information. If the Defendant in this case was the complainant in the internal grievances mentioned, the application may well have had a different result.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

Brabners is a Limited Liability Partnership