22 Jun 2014
No place to hide
Employment alert email
In Warm Zones v Thurley & Buckley, the High Court ordered two individuals to allow an expert appointed by their former employer access to their personal computers for the purposes of establishing whether they had removed and passed on confidential information.
The underlying story is a common one, T and B had been employed by Warm Zones. Their contracts included express confidentiality provisions prohibiting the use or disclosure of Warm Zone's confidential information during and after employment.
Both left to join a competitor and strong evidence subsequently came to light suggesting that T and B had breached their contracts and had taken all or part of Warm Zones' database of contacts with them and held the details on their personal computers.
Sceptical of the integrity of T and B, the High Court rejected their offer in the more usual form of delivery up of information taken coupled with affidavit evidence of receipt and use. In the Court's view the overriding consideration was whether there would be least risk of injustice in granting or refusing Warm Zones' application for inspection of the computers if it ultimately transpired that there had been no breach by T and B. Based to a large extent on the strength of the evidence presented, the Court concluded that balance fell firmly in favour of allowing inspection subject to the safeguard of inspection being conducted by an independent solicitor.
The key message for employers is that the combination of robust contractual confidentiality provisions and strong evidence of likely breach will maximise the chances of securing this still relatively unusual form of mandatory injunction. An express contractual power of inspection of employees' personal equipment may also assist.
The immediate action point is to check the confidentiality and return of property provisions in your contracts. In addition, since prevention is always better than cure, audit your processes for limiting the exporting of confidential information and ensure you have an effective IT policy in place.