In this particular situation, we advised a large IT business who sought advice following the resignation of one of their senior account directors. He had openly declared his intention to join one of our clients’ competitors and was immediately placed on garden leave and asked to return company property. He had various restrictive covenants contained in his contract of employment including non-compete, non-solicitation and non-dealing.
The employee returned his company laptop during his period of garden leave. Following our advice, our client had the laptop forensically examined and discovered, amongst other things, that the employee had installed a particular software application that allowed him to back up documents and files and to store them onto an alternative storage system. Rather recklessly on the part of this employee, there was evidence that he backed up board papers, acquisition documentation, key customer documents, pricing matrices. These were all highly sensitive company documents.
Our client needed to have all these documents back and a very strong reassurance from the employee that he would not be retaining any copies. Also, because he had demonstrably shown his disloyalty to his employer, they were determined that he would be held to his contractual restrictive covenants. Finally, they were understandably not content to continue paying an employee who had stolen from them.
Drawing on our wide experience of advising businesses on protecting their legitimate business interests, we wrote to the employee and set out in no uncertain terms that not only was he in breach of various Acts (including the Theft Act, the Copyright, Designs and Patents Act, and the Data Protection Act) his actions were also a breach of confidentiality, an act of gross misconduct and clear evidence that he would be proceed to act in breach of his restrictive covenants once his garden leave period was finished. We gave the employee 7 days to confirm his agreement to the following:
As the employee had been clearly ‘caught in the act’, he readily agreed to our proposals. All documents were returned, and as a result of the undertaking, he did not start work again for a period of 6 months. This gave our client sufficient time to ensure that all the employee’s former key clients were being warmly looked after by them and not tempted to join the employee at his new job.
Categories: Employment Law