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Assessing employee misuse of confidential information

How an employer can respond to an employee’s removal of confidential information

An employer's confidential information is one of its most important assets. Whether in relation to its client list and client contact details, its pricing structures, details of client contracts, or future business plans?, an employer will want to do all it can to protect its confidential information and prevent misuse by departing employees.

Organisations may deploy a variety of measures to protect confidential information, including: well-drafted confidentiality provisions in employment contracts, protocols as to the use and distribution of confidential material, limitations within IT systems on the extent that data can be sent externally, and risk analysis of departing employees to identify cases where there might be concern.

A review of the email traffic of an employee (whose departure causes concern) may be necessary. In some cases a forensic analysis of equipment used by such an individual may be appropriate to identify any removal or misuse of confidential information.

Despite the relative ease with which employers can often identify the removal of confidential information by electronic means, it is perhaps surprising how often individuals send information outside their employer's systems without consent or their employer's knowledge. On discovery of such conduct, particularly in the context a key employee's departure, the employer then needs to decide how to react.

The employee's explanation of the situation will be crucial to an employer's thinking and how aggressively it wishes to pursue the matter. Employees may say they regularly email confidential information to their personal email address or download it to their laptop because they wanted to work on the material at home and could not access the employer's systems remotely. Whether or not such an explanation is credible will depend on the circumstances and the timing of the employee's conduct.

A regular pattern of emailing work home and amended material back again will be more credible than unprecedented emailing of a wide variety of material not being needed or used at the particular time in the run up to a resignation. The use of USB sticks may also provoke suspicion as may deletion of emails, downloads etc., which could be construed as the employee covering their tracks.

How far an employer will want to take the matter in terms of litigation may well be influenced by the employee's explanation of their conduct when confronted.

A formal letter before action should address issues such as the return of any physical property and documentation in the individual's possession; deletion of any confidential information in their possession; and formal undertakings that these steps have been taken, that confidential information has not been passed to any third party. and that the employee will in future comply with their confidentiality obligations – and if appropriate restrictive covenants.

The employer may also wish to seek a detailed explanation of why material was copied or sent outside its systems and potentially why specific documents were accessed, copied or reviewed by the individual at certain times. Through appropriate correspondence, the employer will hopefully be able to get comfortable that the employee fully appreciates the seriousness of the situation and the risk of legal proceedings, has genuinely remedied the situation in terms of the return and deletion of confidential information, and that any undertakings given can reasonably be relied upon without the need for litigation.

Charles Wynn-Evans is a partner at Dechert