Closing Pandora's Box
The outcome of a recent case brought by Churchill Retirement Living Limited has shown how important it is to specify exactly what actions are prohibited to a former employee if companies want to protect their confidential and commercially sensitive information.
In this specific case, the former employee of Churchill Retirement had copied a list of contacts and information about two potential retirement development site purchases onto a memory stick before he left to join a competitor.
When they found out, Churchill applied to the courts for an order prohibiting the employee from using the list of contacts and from contacting anyone whose name appeared on the list of contacts. They also asked for an order to stop the new employer from making a move on either of the potential sites they had ear-marked.
At first Churchill thought that the judgement would go their way, when the judge agreed that taking the list of contacts and the site information could amount to a breach of contract or breach of confidence, and granted an order prohibiting the ex-employee and the new employer from ‘using’ the list of contacts. But the judge refused to go so far as ordering that they must not make contact with the persons on the contact list, because the situation had not been covered by Churchill’s contract of employment.
And when it came to the site purchases, Churchill ran up against the same problem, despite them arguing it was highly confidential information because the properties were not for sale on the open market and the proposed sale was not publicly known.
Again the judge would not grant an order to stop the new employer pursuing the sites. Instead he ordered that the new employer must not use any information relating to Churchill’s profit-margin on any site. The judge went on to say that, if Churchill suffered a loss on the sites as a result of the breach of confidence, that loss would be purely financial and easy to calculate, so a claim for compensation would be straightforward.
Employment law specialist Kate Wyatt of Miller Hendry commented:
“This case shows how important it is to include specifics in contracts where employees have access to confidential or commercially sensitive information. The contract should specifically prohibit actions such as copying and removing this information.
In certain cases the contract should also prohibit any contact with clients or other connections of the employer for a specified period after the employment has come to an end.”
She added:
“If it’s really clear that an action is in breach of contract, then it’s much more likely the court will grant orders that should prevent the breach of confidence happening and allow businesses to keep their information safely under lock and key.”
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