There has, at least anecdotally, been an increase in the number of disputes concerning breaches by departing employees of their obligations.
This could consist of removing confidential information, breaching restrictive covenants, or orchestrating and participating in 'team moves'. Many employers will have experienced the removal of confidential information – for example, where an employee who is preparing to resign or being made redundant emails home client lists.
The ongoing war for talent and the increase in employee mobility as certain parts of the economy improve both contribute to this trend. One could take the view that employees, whether or not they are naive about their legal obligations and potential liabilities, have always on occasion misbehaved. What's changed is that employers have more opportunity to prove breaches than ever before. Electronic communications may make it easier for staff to remove information and communicate about team moves, but their use may also make detection and proof of breach easier.
Prior to the digital era proving that an executive had orchestrated a team move could be very difficult unless, for example, one of the team provided the employer with evidence of what had happened. Similarly, removal of confidential information might be suspected but the evidence to prove it difficult to obtain.
The use of electronic communications increases the likelihood – or at least possibility – that messages sent by miscreant staff are potentially retrievable (whether from servers, mobile phones or otherwise). These could be discoverable in litigation, and provide direct or circumstantial evidence of the intentions and actions of the employee(s) in question.
Employers should therefore not lose sight of the importance of adopting appropriate policies. They should make clear to employees their responsibilities, the employer’s monitoring powers, and the consequences of breaches of duties. Organisations should also be mindful of the need to maintain appropriate IT and other protections to make the removal of confidential information harder.
Charles Wynn-Evans is a partner at Dechert