Upping our game in relation to confidential information

I often get involved in disputes between employers and ex-employees about what they might be doing with a former employer’s confidential information, usually at a point where letters threatening legal proceedings are issued.

What steps can we be taking to improve practices in this area?

At the recruitment stage you might like to tell candidates you specifically don’t want them to share confidential information with you during the recruitment process. The employee will have a duty of confidentiality to their existing employer, as well as duties of fidelity and trust and confidence.

With regards an employee who may be joining you, during the induction and onboarding processes it is worth including written instructions to the new joiner that you expect them not to bring anything with them, and an unequivocal written instruction will be really useful evidence if you’re accused of wrong doing by the former employer. You might like to tell them to take their own legal advice and avoid sharing things with them until they have actually arrived – you wouldn’t want to put them in a position of conflict whilst they’re still working out their notice or are on garden leave with their former employer.

If they’re sharing information with you before they arrive, you should ask yourself if you would raise an eyebrow if an employee shared this information from your organisation with a third party. That yard stick will probably prove whether it is something you should or shouldn’t be involved in.

Then, as regards to your employees when they’re leaving you, it is worth having a written assurance that they have returned all copies of anything confidential to you at the point of their departure. You are clearly able to recall and examine their phone and laptop to make sure that that is the case. A suspicious employer might check email and activities such as downloading data, looking out for the use of emailing to personal email addresses such as Gmail and Hotmail. Even asking somebody if you can check their personal devices will flush out a guilty party. Somebody who has nothing to worry about is unlikely to be concerned.

You could also ask the departing person what information they have shared with any head-hunter or a recruiter and their new employer to flush out what may have been shared.

If you are on the receiving end of some kind of action, you need to know what use has been made of any confidential information you have received. Can you ringfence it and show you haven’t actually used it? Is it isolated on your systems and then deleted? Can you provide an audit trail of the steps that have been taken in relation to that data, in particular, evidence that you haven’t done anything with it? If you do get dragged into litigation, these are all the sorts of things that will come up.

For many years people have gotten away with removing confidential data, which was much harder to prove when everybody worked with paper. Now we are in the modern data era it is harder to slip through the net. One of our clients has recently been on the receiving end of a dawn raid where lawyers came in with power to search computer systems, and if nothing else it is a gross distraction.

In a recent case involving Dyson, a developer working on electric car technology left to go and work at Tesla. As a result of his activities, he was prevented from commencing employment at the new employer for a twelve-month period, so this hopefully busts the myth that the clauses that you draft into the contracts have no meaning.