One term that parties and lawyers often discuss at length is whether to include a confidentiality clause. For some, privacy is a necessary term for any comparison, while others wish to have the right to publicly discuss the terms of the transaction. Employers should decide on this issue when deciding whether or not to include confidentiality obligations in settlement agreements. In light of recent experience and regulatory guidance, it may not be appropriate, in many cases, to include confidentiality obligations. In other cases, careful drafting may be necessary to make the worker understand exactly what the clause requires and what the scope of the permitted derogations is. These related topics are discussed in more detail in our previous article here. M. Steels had brought a series of appeals before the Labour Court against his former employer, DieChy Farm Kennels Limited (“Duchy”). A confidentiality clause in a confidentiality agreement such as a confidentiality agreement always imposes a “condition”. But, realistically, a confidentiality clause contained in the boilerplate clauses of another agreement will never be a “condition”. Since proving damages for breach of confidentiality tends to be difficult, concordation agreements can set out remedies such as lump sum reimbursement of financial damages, rights of omission, attorneys` fees and/or attorneys` fees. Employers often make comparisons to avoid litigation.
Sometimes the confidentiality of the comparison is essential for the employer. While simple confidentiality clauses are often contained in settlement terms and are linked to enforcement mechanisms (which happens when a breach occurs), it is unusual to see cases dealing with the applicability of these clauses. . . .