Employee broke confidentiality agreement to hound ex-employee

[bsam86]

Hi - would appreciate a bit of advice. I believe we should get legal advice for the purpose of sueing the employee concerned and the company for breach of contract and slander respectively.

 

The circumstances:

-My partner was unfairly dismissed at start of year

-She received compensation from the company and a confidentiality agreement, as well as a promise of a good reference as full and final settlement.

-She now has job with rival company

-An employee she worked with (management level) is now openly telling people on the business premises she used to work (including people who work at her new job), that she was sacked dishonorably for gross misconduct and theft.

 

Please advise... My initial reaction is to do the following:

a)sending letter to the employee informing her we are considering suing for slander and remind her of the confidentiality agreement

b)seeking legal advice to claim against ex-employer for breach of contract and consequential damages- including undue distress and potential loss of earnings (loss of overtime offered due to the rumours)

c)ensuring she is fired by the ex-employee for these lies.

 

Thanks for your time guys. She was deeply distressed by this and fears losing her job, the woman spreading the rumours is a gossiping malicious b*tch who pretended to be her friend. Your help is really appreciated.

 

Gratefully,

 

peevedpartner

[SarEl]

I'm afraid that you won't like the reply. Defamation is a very expensive case to fight (even if you have grounds) and if you are on a free internet board asking for advice instead of sitting comfortably in your barristers sitting area waiting to talk to them - you can't afford it. The court deposit alone is £10k, then there are legal fees (even more than that) and you have to pay up front - you only get costs reimbursed if you win. Which is a lot harder than you think.

 

In the first place you cannot sue the company unless you can prove that they (a) know that this is being said (b) have encouraged it to be said or have failed to stop it being said by © an employee under their control. So you would have to bring this to their attention and ask them to stop it. Then there is a problem with the basis of your claim. It isn't that easy to prove. You cannot prove that the employer has breached confidentiality or their contract with you - they haven't done anything, and cannot be held responsible for rumours spread by their staff unless, as I said, they know about it and do not stop it. But they also cannot be held accountable for anything that happens outside work thereafter. Assuming that you can prove it happened anyway, because as soon as you start talking legal action your witnesses are very likely to become very forgetful about what they heard and whom they heard it from.

 

Then there is no loss of earnings from loss of overtime - overtime is not a right and there is no way to prove that the current employer refused overtime on the basis of the rumours and this basis alone. And you can't force anyone to sack someone. Distress is worth a couple of hundred pounds (lots less than your legal costs!).

 

So realistically you aren't going to be suing anyone, you can't afford to and it isn't nearly as easy as you think to prove. You can certainly have a solicitor write to the employer about this, but any threat of legal action will be a bluff and most people realise this. I would suggest that you might try this approach (or do it yourself - it's cheaper), but it would be a better use of your time and energy to talk to the current employer about what is happening and how she feels she is being treated as a result of these untrue rumours. Keeping her current job is more important than the small-minded actions of one former colleague, no matter how upsetting it is.

[bsam86]

Hi,

Thanks for your reply. Whilst I understand that a case for defamation may be difficult to win, I'm shocked that the confidentiality agreement signed by the company does not prevent their employees breaking it while in company uniform, and being paid by co. Seems like it was a rag now.

 

My partner is in the cooling off period for her new job, the person who told the lie is the ex-supervisor of my partner. Her 'rumours' are likely going to be seen as the co's official view of the matter. Surely they should have briefed her supervisor with regards to the confidentiality agreement?

[SarEl]

Hi,

Thanks for your reply. Whilst I understand that a case for defamation may be difficult to win, I'm shocked that the confidentiality agreement signed by the company does not prevent their employees breaking it while in company uniform, and being paid by co. Seems like it was a rag now.

 

My partner is in the cooling off period for her new job, the person who told the lie is the ex-supervisor of my partner. Her 'rumours' are likely going to be seen as the co's official view of the matter. Surely they should have briefed her supervisor with regards to the confidentiality agreement?

 

No, because to do so would in itself have been a breach! I do understand why you are angry, but the employer cannot be held liable for this unless you can evidence that they know about it and have condoned it. In a different context (where you aren't personally involved) I am sure that you appreciate that staff gossip about all sorts of things, and the employer doesn't usually know about it or hear about it. To be honest, it really is unusual for an employer to act in breach, although obviously it does happen. I would suggest that a stern letter is probably the limit of what you can reasonably do, and is more than likely to stop any further gossip - and as I said, supporting your partner while she resolves this with the new employer. I would suggest that if she hasn't previously told them about this then she confronts it head on by telling her manager / HR that she left her previous employment under the terms of a compromise agreement and is unable to disclose any further details due to the terms of the agreement, but that there is obviously no truth to the rumours. With any decent employer this is generally sufficient to tell them that (a) something went wrong and (b) the employer was at fault, not the employee. Revealing the existence of a compromise agreement does not breach its terms.

[bsam86]

Thanks,

Im very sorry to ask but Im confounded... are you sure it would be a breach to tell her supervisor the matter had been subject to a compromise agreement? They would have known of the issue itself, as they were her supervisor, so for the company to inform her of the existence of a compromise agreement would not have been a breach surely?

 

I cant believe the company dont have an obligation to tell the people directly involved in the issue, who also happen to be her supervisor, and likely to be asked for a reference, that the issue is subject to a confidentiality agreement. That should be the first thing they do- inform the parties directly involved, that the company has agreed to confidentiality on the matter. The whole point in the agreement was so her supervisor wouldnt say stuff like this to her new employer... so she could move on. If we knew this was going to happen we'd have not settled when we did and taken them to court.

 

I'm sorry if Im making you repeat yourself, Im not angry at you in anyway, on the contrary I appreciate your patience with someone as frustrated as me, and really appreciate your imput

[SarEl]

Thanks,

Im very sorry to ask but Im confounded... are you sure it would be a breach to tell her supervisor the matter had been subject to a compromise agreement? They would have known of the issue itself, as they were her supervisor, so for the company to inform her of the existence of a compromise agreement would not have been a breach surely?

 

 

I am confused by this. Are you saying that her current supervisor knows about it?

 

What I am saying is that she should say this to her current supervisor. She need have no dealings at all with the former one - just a stern letter to the former employer saying what has been said, by whom and to whom, and that this is a breach of the agreement. She is not in breach to disclose the existence of the agreement as an explanation of why she cannot say anything else.

[bsam86]

Sorry-to clarify:

 

-Sues's ex-supervisor was involved in the incident that led to Sues dismissal. The incident which resulted in a compromise agreement from the company, and compensation, in return for confidentiality from Sue and no further action against the company.

-Her ex-supervisor is telling customers at her store (including customers she is aware work in Sues new store with her), that she was dismissed for theft (not-true).

-My gut tells me that if anyone should be aware that the matter is confidential it should be her ex-supervisor, who was involved in the incident and one of the few who could possibly breach the contract.

 

What I believe is if they havn't told the ex-supervisor not to discuss it, they have been unable to perform their duties outlined in the contract, and as such are liable for whatever is due

If they have told the ex-supervisor, they should reprimand the ex-supervisor (not too bothered if they do or not though tbh but they should), but also take steps to ensure it doesnt happen again so that they can fulfill their side of the contract. (ie tell the staff member of the companies obligations)

 

Im no expert by any means but that kinda makes sense to me and seems backed up in law

 

I agree she should raise this matter with her new employer though, or at least have a full explanation ready for when/if they bring it up

 

Thanks again. 'Sue' asked me to thank you too

[SarEl]

Sue's former supervisor is the one gossiping - not the employer. Their only obligation as an employer is to tell the ex-supervsior that Sue has left, which they have done. They do not have to disclose anything else and should not do so. So the employer isn't liable for something that their employee makes up unless they know about it. They don't know, and therefore can do nothing about it unless you tell them. If they then do nothing and it continues, then they become liable vacariously, because it is behaviour they are permitting to continue. None of which gets away from the fact that suing them will be costly and difficult - to say nothing of time-consuming!

 

Sue is welcome.

[honeybee13]

Hello there. I see you're new and I don't think I've seen you on the forum before. It might be worth mentioning that SarEl is an employment barrister, if that makes any difference to you.

 

I often mention in cases of alleged theft that if the police aren't called in, it's an interesting stance by an employer.

 

My best to you and Sue.

 

HB