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Further Expansion at Commercial Law Firm TaylorsJust how far can you go to protect your business from an employee taking confidential information?

» Posted on: 9 June 2014

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It seems that the answer is actually quite far. Employees were recently compelled by the High Court to allow the viewing and copying of data held on their personal computer.

In the case, the former employees were accused of copying and/or disclosing the employer’s customer database to a competitor whilst they were still employed by the employer. There was email evidence that strongly suggested that the employees, who had confidentiality clauses in their contracts, were trying to sell some of that information.

Despite the employees alleging that the employer was on a “fishing exercise for emails…relevant to … employment tribunal proceeding … and [was] part of a process of harassment”, the High Court, in balancing whether to make the order or not, took into account which course of action would lead to the least risk of injustice if it later turned out at a full hearing of the case that it had been “wrong”, in that the employees had nothing to hide. Judge Simler was also “skeptical” whether the employees would be able to give a plausible alternative explanation for their behaviour and found that the least risky course would be to allow the viewing and copying.

This may seem a surprising decision when it concerns an employee’s personal computer but if an employee is considering moving to a competitor or setting up in competition themselves, the most likely tool they will rely on is their own computer to store relevant confidential information and, also, more commonly, their smart phone or tablet. Businesses need to be able to protect themselves against such actions and provided there is some evidence to suggest that improper behavior has taken place, then the courts are likely to weigh up in the employer’s favour their interests and the likely damage to it.

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