Contracts ensure everything is strictly confidential

File photo 22/8/2208 of a general view of a USB memory stick being inserted into a laptop computer. A member of staff from the Health and Safety Executive (HSE) has lost a USB stick containing a safety assessment of a nuclear power plant. PRESS ASSOCIATION Photo. Issue date: Friday February 17, 2012. The data was misplaced by an employee of the Office for Nuclear Regulation (ONR), an agency of the HSE, while attending a conference in India, sources say. See PA story POLITICS Nuclear. Photo credit should read: Matthew Baker/PA Wire
File photo 22/8/2208 of a general view of a USB memory stick being inserted into a laptop computer. A member of staff from the Health and Safety Executive (HSE) has lost a USB stick containing a safety assessment of a nuclear power plant. PRESS ASSOCIATION Photo. Issue date: Friday February 17, 2012. The data was misplaced by an employee of the Office for Nuclear Regulation (ONR), an agency of the HSE, while attending a conference in India, sources say. See PA story POLITICS Nuclear. Photo credit should read: Matthew Baker/PA Wire

If you are employed and have ever read through your employment contract, or if you are an employer and have had to consider the clauses contained within one, you will have no doubt come across a confidentiality clause.

Confidentiality clauses are designed to protect an employer’s confidential information and prevent it coming into the hands of third parties, especially competitors.

Most employees recognise that there is an element of mutual trust and confidence between them and their employer, and it’s common sense that disclosing confidential information would be a serious matter.

However, many people sign these contracts without much thought and then forget about them.

What is not common knowledge is that an employer can enforce a confidentiality clause even after the employee has left, by applying to the court for an injunction or damages. But a recent case has shown that this is not all.

In this case some former employees of an organisation called Warm Zones were accused of having copied or disclosed a company customer database to a competitor while they were still employed at Warm Zones.

The company had email evidence that strongly suggested their employees were attempting to sell information from their own database. The contracts of employment contained confidentiality clauses.

Warm Zones applied to the High Court to compel Sophie Thurley, a former employee, to allow viewing and copying of her personal computer. Somewhat surprisingly the High Court said “yes” and ordered that the company be allowed access. This was despite the employees saying that application was designed (among other things) to harass Ms Thurley during her unfair dismissal proceedings against Warm Zones.

The High Court had to make a decision about whether allowing access to personal computers was likely to involve a lower risk of injustice than if it didn’t allow it.

In fact the judge was said to be “sceptical” as to whether the employees could prove alternative explanations for their behaviour as suggested by the emails at a trial.

So the court agreed with the employer, the injunction was granted, and viewing of the personal computers was ordered.

Could the employees simply delete any files, emails, or other data from their computers, leaving nothing for the employer to find?

What a lot of people do not realise is that information can be retrieved from a computer even after it has been removed or deleted. I recently spoke to a computer data retrieval expert and you would be surprised at what can be recovered from a computer.

So, if you are an employer and you suspect that your confidential information has been printed off, downloaded, emailed, put on a memory stick or otherwise copied without authorisation there are experts who can identify where it has gone and recover it.

If you are an employee, be very careful about copying or downloading files from your employer. There may be a 
valid and innocent reason for doing so, but it would be best to tell your employer that you intend to do it.

As always, if you are concerned about confidentiality issues, as an employer or employee, you should seek expert legal advice.

Mark Pentecost is an assistant solicitor at Sanderson McCreath and Edney in Berwick.