I’m not a cricketing fan, but even I have noticed the current press coverage about the eagerly awaited autobiography of Kevin Pietersen which is predicted to reveal all sorts about his relationship with former team-mates and management in the English cricket world. Normally this wouldn’t pique my interest, but the bit that did was that he referred to having been subjected to a confidentiality clause (sometimes called a ‘gagging clause’) when he was sacked. His recent Twitter comments suggest that that agreement regarding confidentiality, signed in February, is due to come to an end, leaving him free to say what he likes. That seems somewhat unusual as ordinarily confidentiality clauses have no end in time or, rather, only end once the information which they cover has come into the public domain through the employer’s disclosure rather than the ex-employee’s. In that case, the information is no longer confidential anyway.
The English Cricket Board seem to have been quick to say that they will try and take enforcement action over the clause, which could prove expensive for them as injunctive proceedings are always costly, or it could be be too little too late if the horse has already bolted and Pietersen has already published his autobiography. So what can an employer do when an employee is leaving to try and ensure the confidentiality provisions have some teeth? The key thing that you can do in a Settlement Agreement is have a clause that warns the ex-employee that their breach of any of the clauses of the agreement will result in them having to repay to you any monies which you have paid them as part of their departure. This can have a real disincentive effect – yes, you would have to spend some money to pursue the employee for that money back, but surely they are going to think twice about their activities if it risks a debt action?
Public sector employers like the NHS and Housing Associations do need to be careful as there are separate rules precluding them gagging any employees.