Over time, Uganda’s employment/labour laws have placed their focus and had their inclination more towards the formal sector of employment, and have consequently been shaped to regulate and cater for the rights, responsibilities and obligations of employers and employees in the formal sector. Recently, however, Uganda has started moving and progressing towards a more inclusive employment regime that seeks to take cognizance of the informal sector and legislating with the aim of regulating the work relations between employers and employees. This has been evidenced chiefly through the draft Employment (Amendment) Bill 2020 that recognizes and expressly provides for the informal sector.
Uganda has taken an extra mile and has accorded specific attention to the labour/employment rights of workers in the informal sector presumed (and rightly so) to have multiple vulnerabilities compared to their other counterparts in the sector; domestic workers! This is true especially if one considers that domestic work continues to be undervalued and invisible and is mainly carried out by girls and women, and that in a third world economy such as Uganda, opportunities of formal employment are scarce and therefore domestic workers constitute a significant proportion of the national workforce and yet remain among the most marginalized.(ILO Convention No. 189, preamble) The International Labour Organization (ILO) Convention No. 189, formally referred to as the Convention on Decent Work for Domestic Workers 2011 (No.189) adopted on 16th June 2011 defines domestic work as work performed in or for a household or households (Article 1, ILO Convention No.189) which may include tasks such as cleaning the house, washing, gardening, among others. It goes ahead to define a domestic worker as any person engaged in domestic work within an employment relation, and sets minimum standards for the domestic worker (Article 1, ILO Convention No.189). Notwithstanding the fact that Uganda is still in the process of ratifying this Convention, it has resorted to parallel legislation and has developed draft Employment (Domestic Workers) Regulations and is in the final process of consultation of the relevant stakeholders. The Regulations which are in pari materia with the ILO Convention No. 189 seek to streamline the working conditions of domestic workers by clearly enumerating the duties of employers, service providers and domestic workers.
With the recognition and classification of domestic work as having the possibility to attract employment, the implication is that domestic workers are subject to signing contracts of and for employment, just like any other employee. No doubt, that a contract of employment goes a long way in protecting and regulating the behavior of both the employer and the employee especially if drafted well. A question for consideration however is, how enforceable is the contract when there is a confidentiality/non-disclosure clause?
Non –Disclosure/Confidentiality Clauses (Restrictive Covenants).
A restrictive covenant or non-disclosure clause is a promise included in a legal agreement that prevents one party to the contract from taking a specific action (corporatefinancialinstitute.com). Similarly, a non-disclosure clause is a provision in a legally binding contract that establishes a confidential relationship. The party or parties that sign the agreement containing the clause must not disclose sensitive information they may obtain during their course of employment. A non-disclosure clause therefore has the effect of placing a burden on the signatory to be proactive in making sure that such information is kept secret.
Whether Repudiation of the Contract Gives LeeWay for Breach of Confidence.
With repudiation of the contract for one reason or the other, the question that arises is whether the confidentiality clause(s) remain operative or whether they become inoperative hence giving way to breach of confidence. Arguably, this would depend on the language in which the clause was couched. Delving into the law, Uganda has not really positioned itself as a source of well-reasoned jurisprudence on the law governing restrictive covenants or confidentiality agreements, we shall rely on common law and case law from other jurisdictions.
Legal scholar, Kathryn Daniels in her book “Employment Law” (Ngwambula F. Ndundwe; Examining the Law on Restrictive Covenants in Uganda) identifies four broad kinds of restrictive covenants, namely; Non-Competition covenants, Non Solicitation Covenants, Non-Dealing Covenants and Non Poaching Covenants. All the four make inference to restrictions on modes of secrets regarding trade. However, the kind of environment in which domestic work takes place, puts a domestic worker at the centre of a dilemma where they may be required to sign contracts with blanket disclosure clauses that require them to hold any information they may be a party to concerning their duties, employer or workplace in confidence that does not qualify under the four categories and probably leans more towards behavior, character or way of life.
In the case of Campbell V Frisbee, ( EWCA Civ 1374 (CA)) concerning a claim for damages and/or an account of the profits arising from an article in “The News of the World”, allegedly in breach of an express confidentiality requirement by Ms. Vanessa Frisbee, Counsel for Frisbee argued that as to the issue of whether an accepted repudiation brought to an end all contractual obligations by the innocent party, Lightman J had departed from the previously established law in General Billposting Company V Atkinson (An employer is no longer entitled to enforce a restriction in consequence of their breach of contract). He followed the decision in Rock Refrigeration Ltd v Jones, (1 All ER 1) the reasoning of Morrit LJ, in particular the assertion that despite the acceptance of an employee of a wrongful repudiation, nevertheless, the employer’s property rights, such as the use of the company car, the employer’s trade secrets and paper remain intact and the employee is no longer entitled to use that property. Lightman J continues this discussion on confidentiality, leading the Court of Appeal to the conclusion that he did not find that the obligation of confidence survived wrongful termination as a matter of contract but rather that confidentiality remained binding in respect of confidential information the employee had acquired in the course of his service. While Lightman J emphasizes that the source of the duty of confidentiality arises from contract, Lord Phillips MR in the Rock Refrigeration (supra) case stated that the duty of confidentiality is an equitable obligation which arises independently of the terms of contract and is therefore unaffected by wrongful termination or better still, repudiation of the contract (Oxford University Press; Industrial Law Journal, Vol. 32 No. 1, March 2003). Arguably, it appears that the duty of confidentiality in employment relations based on contract is much stronger than the duty arising under the equitable doctrine of breach of confidence. The case of Attorney General v Blake ( AC 268) holds to the effect that the fact that parties had once been in a contractual relationship with each other, whether it be a contract of employment or of services, cannot of itself give rise to an everlasting obligation of confidence though there may be an express term of the contract to that effect. In Facenda Chicken v Fowler ( Ch 117), it is clarified that non-disclosure of information post-termination relates only to those things classified as trade secrets.
For domestic workers, the confidential information might not regard trade secrets but might regard information such as finances, character or health. In this instance, the equitable doctrine of confidence and the contractual obligation might perhaps still apply. Glesson CJ in Australian Broadcasting Commission v Lenah Games Meats Pty Ltd ( HCA 63) comments thus:
“Certain kinds of information about a person, such as information relating to health, personal relationships or finances, may be easy to identify as private…The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is a useful practical test of what is private”
From the above text, conduct that is criminal when disclosed would be offensive to an employer of a reasonable domestic worker of ordinary sensibilities. The duty of confidentiality then has to be weighed against a number of factors such as public interest. In such a scenario, it then dawns on the domestic worker that the blanket confidentiality clause they consented to include confidentiality of criminal conduct committed in a home and they now must make a choice between breaching the confidence or maintaining the confidence and the risk of being an accessory to a crime by saying nothing about it.
The Exception of Public Interest and Freedom of Expression in Perspective
The Court of Appeal in Campbell v Frisbee (supra) acknowledges that the right to confidentiality must give way in certain circumstances of public interest. This position has been fortified by the Constitution of the Republic of Uganda (1995) in Article 43 which is to the effect that in the enjoyment of rights and freedoms provided by the Constitution, among which is Freedom of Expression provided for in Article 28, no person shall prejudice the fundamental or other human rights and freedoms of others or public interest. The implication is that the public deserves and is owed a duty to be furnished with information that is crucial for its wellbeing, what Lightman J refers to as “the pressing social need test”. Therefore, in such situations, one’s (a domestic worker’s) freedom of expression cannot be limited. Lord Denning in Woodward v Hunchins ([1997 1 WLR 760) noted that if a person seeks publicity to their advantage, they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the interest of the public that it should be corrected.
Considering the position above, let’s take for example a scenario where a domestic worker consents to a clause of general confidentiality in the name of “what happens in these premises stays in these premises” for the privacy of the employer and her household, and later discovers that the employer carries out criminal conduct, murder for example, and is already bound by the confidentiality clause. Public interest in this instance demands that confidentiality gives way and the employee is permitted to exercise the right to freely express themselves on the matter for the safety and security of the public and herself. Contract law and criminal law and the duty to give evidence as opposed to these clauses.
A more interesting angle to this issue to explore is whether such domestic workers can get protection from the enforcers of law and courts of justice in light of Section 206, 251, 393(1), 394, 395 of the Penal Code Act 1950 (Cap. 120) which places liability on accessories to crime and Section 103 which criminalizes obstruction of the course of justice.
The Susan Kigula Incident (A case/dilemma for the domestic worker).
In Susan Kigula Sseremba & Anor v Uganda ((Criminal Appeal No. 1 of 2004)) , the domestic worker/house maid in this case was charged with murder because the evidence pointed towards the fact that she gave a hand to her employer, Susan Kigula, in the murder of her husband.
Re-imagining the case of Susan Kigula in the current employment regime where domestic workers are fully recognized as employees, suppose the maid had a written contract of employment that contained a confidentiality clause on all business that transpired in the house, unaware that her boss was a potential murderer, on that fateful night, perhaps she would not have participated in the murder but kept the whole occurrence a secret as required of her in her contract of employment. As justice would take its course, evidence would soon reveal that the domestic worker was aware of all the facts of the murder and did not disclose them to anyone. This then would make her an accessory and liable to imprisonment for seven years. Additionally, it would make her both her and Susan Kigula liable under Section 103 of the Penal Code Act for conspiracy to defeat justice and interfere with witnesses. Either way, the maid would be liable! It then appears from this that breach of confidence in such a situation on grounds of public interest would free the domestic worker from liability. The domestic worker can not seek to use the contract signed with their employer to preclude them from testifying against the employer, because from the law that governs contracts, section 19 of the Contracts Act, any contract that seeks to defeat the law and public policy would be illegal. Hence a contract with a non-disclosure clause that seeks to preclude a domestic worker from testifying or reporting any criminal behavior of their employer would be illegal, since it goes against evidence laws that don’t classify domestic workers as witnesses that cannot be compelled. This means they have the obligation to report and testify in instances where the employer is involved in criminal behavior.
From the discussion above, the solution could be that first and foremost, non-disclosure agreements should be express on the kind and categorically state the type and category of information to be kept confidential in a household. It is also important for domestic workers to note that they should only consent and agree to only that which is legally accepted and does not constitute a crime or tort. The obligation equally lies with the employer to include confidentiality clauses that can effectively operate within the confines of the law.
This then places a duty on the legislators to make express provisions regarding confidentiality agreements and clauses especially catering for the context and environment of domestic work.
The provisions from the legislators should also take into account the fact that most domestic workers are ignorant about the law, and also illiterate. This calls for protection for the employees, so that employers do not exploit these weaknesses to get domestic workers to enter into unrealistic and illegal contracts and agreements.
This article was co-authored by Onen Cylus, legal scholar and researcher.