Protecting Confidential Information
Protecting Confidential Information – Employer & Employee
Protecting Confidential Information
Confidential information such as client lists, business strategy information or pricing structures are valuable and key assets of most businesses. Protecting confidential information and preventing it from falling into the wrong hands is therefore crucial.
Below we have outlined some suggestions to help prevent breaches of confidential information and how to deal with them.
As an employer how do I protect confidential information?
• Include comprehensive confidentiality provisions in employment contracts that expressly prevent the use and disclosure of confidential information during and after employment.
• Ensure that “confidential information” is defined appropriately to reflect the nature of your business, the employee’s role and the type and scope of confidential information that they may have access to.
• Remind employees of their confidentiality obligations when leaving the business and include contractual provisions governing the return of confidential information when leaving employment.
Review how you manage confidential information
• Restrict access to confidential information – consider who is sent confidential information and that this is only to employees who need it.
• Mark documents as “confidential” making it clear that the information contains confidential information.
• Ensure that hard copies of confidential information are locked away and filled appropriately.
• Encrypt or password protect documents stored on electronic devices.
• It may be appropriate to monitor employees’ access to and use of confidential information and their communications at work, if so, ensure that this is done correctly and legally – make sure that you have clear IT policies governing how and why employees may be monitored, how this information will be used and who it will be disclosed to.
• Be aware of behaviour that may indicate that an employee is misusing or considering misusing confidential information, particularly where they have handed in their notice. Are they using USB sticks? Printing or photocopying documents more than usual? Or compiling lists of customer/client data with no obvious business reason for doing so?
As an employee, can I use confidential information after I leave the business?
Employees may think that information, methods and processes they’ve devised whilst working for a business belong to them and so they can take this with them when leaving the business but this is not the case. Employees need to carefully check what their employer counts as being “confidential information” before removing anything or using it outside of the business. Failure to do so could result in legal action against the individual and/or against the new employer for inciting a breach of the employee’s confidentiality obligations owed to the former employer.
In certain professions and industries business contacts and LinkedIn contacts can be captured as confidential information. The fact that you can access business names and contact details online doesn’t automatically prevent an employer from having rights over this information so these can’t always be taken away on departure from the business.
Employees need to understand what their employer does and doesn’t deem to be confidential and act in accordance with this. The risks of deliberately taking another’s confidential information can be serious.
What should I do if an employee or former employee has breached confidentiality?
However you chose to deal with a breach of confidentiality it is key to act quickly.
• A breach of confidentiality is likely to be a disciplinary matter, depending on the nature and circumstances of the breach – where formal disciplinary action is taken, ensure that an investigation and fair process is carried out and that any disciplinary sanction is proportionate.
Contractual undertakings from former employees
• Seek an undertaking from the former employee and/or any third party you suspect is in possession of your confidential information. This may discourage a former employee from using the confidential information and put the third party (potentially their new employer) on notice that you will pursue them for a breach of confidentiality if they use your information.
Injunctive relief and/or damages
• Issuing proceedings seeking an injunction and/or damages should be carefully considered. Consider whether the cost of taking legal action outweighs the damage or potential damage to your business.
Flora Mewies from Ward Hadaway Leeds, is MMB Magazine’s specialist in employment law for West Yorkshire. Read more about Flora here read all her latest articles.