Confidentiality agreement with an employee

Anna Miśtal-Kluś        17 October 2017        Komentarze (0)

If you are doing business in Poland, you may wonder how to protect your different important business information which is known to your employees. There are many sorts of confidential information connected with your undertaking, such as e.g. commercial, financial, technological or organizational information including sales volume, production volume, distribution, know-how, contractors, development plans, production process management, advertising campaigns and personal data of employees.  In order to prevent their leakage out of your firm it is advisable to oblige your employees to confidentiality. The Labour Code admittedly provides a general confidentiality obligation of an employee, however the scope of the confidentiality may not be certain for an employee, if not specified in the contract directly.

Confidentiality agreement

Therefore what you need is to sign a confidentiality agreement. You may include provisions concerning the confidentiality in the employment contract signed with your new employee, as well as in the separate confidentiality agreement concluded with your previous employees. In the contract it is to be specified what kind of information is confidential, what is the scope of confidentiality and you may indicate your employees the effects of the breach of confidentiality provisions as well. They will be usually different during the employment relation and afterwards – after the expiry or termination of the employment contract.

Disclosure of confidential information

The disclosure of confidential information by a current employee may be treated not only as a breach of contract obligations, but also as an act of the unfair competition, as well as the breach of general employment obligations and cause the liability towards the employer on basis of the Labour Code and the Unfair Competition Act. It is to be underlined that the material liability of an employee for damages incurred by an employer is always limited by the Labour Code only to the amount of three month’s pay of an employee if he has acted unintentionally. In case of intentional acting of an employee such limitation of liability does not exist, then an employee has an obligation to compensate for full damage.

Post-employment obligations

The contract with an employee may provide the confidentiality obligations also after expiry or termination of the labour relation. Such provisions should indicate the period when they are binding. However, the confidentiality provisions might be binding for an indefinite period of time as well, what means in practice that the former employee is obliged to confidentiality as long as certain information is still secret (i.e. if it has already been revealed by others it is not secret any longer).

The material liability for breach of confidentiality after the expiry or termination of labour relation may be governed by general rules of liability for damages based on civil law, as well as by contract provisions – e.g. the contract may provide a contract penalty in the given amount of money for breach of confidentiality. In the event of non-performance or improper performance of an obligation to confidentiality, contract penalty is due to the employer in the stipulated amount regardless of the value of the damage suffered by him.  A demand for compensation in excess of the stipulated contract penalty is admissible if such entitlement of an employer was provided in the contract.

 

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