claims against employees
As trusted members of staff, key employees within your business will usually have access to some of your most sensitive commercial information. This includes things like customer lists, pricing strategies, business development plans, financial forecasts, new product lines and even patent-pending technologies and industrial processes.
Information of this nature is extremely valuable, and therefore where an employee chooses to leave your business or they are made redundant or dismissed, it will be important for you to do all you can to ensure that your confidentiality is maintained and that sensitive information is not shared without your consent or unfairly exploited for someone else’s gain.
Our experienced Dispute Resolution and Litigation team can help you to take the steps needed to protect your position, whether that be through enforcing existing contractual obligations or legal rights, or by negotiating fresh agreements around confidentiality and non-compete provisions.
To support businesses who are looking to prevent a problem from arising, as well as those who need help with an issue that has already materialised, our service offering is extremely broad and includes:
- reviewing the terms of relevant agreements to ascertain the extent of any confidentiality or non-compete obligations, and assessing whether those obligations are enforceable;
- determining whether you can rely on common law or statutory rules to bring a breach of confidence claim – which may be useful if your contractual provisions are weak;
- considering whether protection of your interests may be possible through the enforcement of your intellectual property (IP) rights;
- investigating an employee’s conduct to confirm whether suspicions of wrongdoing or likely intent are well-founded;
- advising you on whether a departing employee with continuing access to sensitive information should be placed on gardening leave, or have their access to sensitive information restricted while they work out their notice;
- obtaining an injunction where a breach of contract, breach of confidence, breach of restrictive covenant or IP infringement has already occurred or is imminent;
- negotiating an agreed settlement in respect of any claims you may have; and
- issuing court proceedings to obtain appropriate redress, where necessary.
An area on which we are frequently asked to advise is, absent any enforceable contractual rights, to what extent does an employee owe a continuing duty of confidence once their employment has ended. The answer to this question is not straightforward and depends on the circumstances.
This is because, while an employee will be under an implied duty of confidence in respect of confidential information and trade secrets for as long as they remain employed, this duty will usually come to an end as soon as their employment ceases. This is unless you can show that the confidential information you are seeking to protect was obtained by the employee while they worked for you, and is now being used by them to compete with your business; or that it was stolen from you by the employee and is now being used to further the interests of a competitor.
We are specialists in advancing claims on this basis and can provide a quick and comprehensive assessment of your position, meaning that you will be clear from the outset about whether a claim of breach of confidence can be sustained and successfully pursued.
Where immediate action to address wrongdoing is required to protect your commercial interests, then it may be possible for you to apply to the court for an injunction. This is a special type of order which either compels something to be done or expressly prohibits certain steps from being taken, and if the terms of the order are breached then a hefty fine or imprisonment may follow.
There are many types of injunction that may help when dealing with errant employees, including:
- a search order, which will entitle a court-authorised representative to search for and seize evidence of suspected wrongdoing – for example, contained on an employee’s laptop or held in a filing cabinet at a competitor’s business premises;
- a disclosure order, which can be used to force someone to hand over any documents in their possession or over which they have control – including a third party to whom your confidential information may have been passed;
- a freezing order, which can be used to stop money and assets being moved out of the country or sold – which may be useful where you have grounds for believing that misuse of your information has generated significant revenue which you may be entitled to recoup; and
- a springboard injunction, which can be used to limit or reverse any commercial advantage that an employee or competitor may have obtained through the theft of your confidential information.
However, to obtain an injunction you need to act quickly in making your application and ensure that you are in a position to show that:
- you have strong grounds for alleging that wrongdoing has occurred, e.g. there has been a clear breach of contract or an undeniable breach of confidence;
- your commercial interests are being, or are likely to be, prejudiced as a result; and
- awarding you compensation alone will not be enough to address the harm that is being caused or which is likely to be caused if the injunction is refused.
You may also need to show that, by granting the injunction, less harm will be caused to your opponent should your suspicions prove not to be well-founded than would be caused to you if your allegations and the fall-out from them are established to be correct.
These are difficult hurdles to overcome, but with our expertise you can rest assured that where an injunction is justified and necessary we will do all we can to help you secure one.
Why choose Geoffrey Leaver Solicitors?
Our Dispute Resolution and Litigation team is well-known for their success in helping businesses to protect their commercial interests and to recover confidential information that has been taken or utilised without consent. In the majority of cases, we can do this without the need to go to court – although in those cases where court action is required, you can be sure that we will robustly fight your corner to achieve the best possible outcome. And we can also help you to head-off potential problems before they arise by providing strategic advice on an employee’s exit from your business.
You may also like to sign up to receive our newsletter or visit our resource hub, or find out what existing users of our dispute resolution and litigation service think about us by reading some of our many client testimonials.
What our clients say:
“Thank you again for your advice and support along the way. In particular, speaking in a non-legal fashion that I could understand.”
Sally-Ann Smith, Interim Management Appointments Limited
For more information about how we can help, you can read testimonials from our dispute resolution clients
Chambers & Partners 2021 notes the team is well-respected and active on a wide range of contractual claims and commercial disputes, including unfair prejudice claims and fraud-related proceedings. Local and international clientele comes from a variety of industry sectors, and also includes private individuals and SMEs. One client commends the “proactive, engaging and considerate” nature of the team.
Chambers & Partners 2020 says ‘Well-respected team active on a wide range of contractual claims and commercial disputes, including unfair prejudice claims and fraud-related proceedings. Local and international clientele comes from a variety of industry sectors, and also includes private individuals and SMEs.’
Legal 500 2020 says ‘Geoffrey Leaver Solicitors LLP’s dispute resolution and litigation practice specialises in commercial property disputes, distribution and agency agreements, debt collection and director, shareholder and partnership disputes. Its work includes dealing with injunctions and freezing orders and work in areas such as insolvency, international trade and IT and e-commerce. Practice head Kenneth Stangoe, Trevor Coward, Guy Brooks and Richard Millard are the key contacts’
The Dispute Resolution & Litigation Team
Ken Stangoe Partner
Dispute Resolution & Litigation 01908 689307Ken is Head of the Department. He has over 20 years' experience as a commercial litigator, with a heavy focus on property disputes, including forfeiture actions and applications for relief, right of way disputes, rent recovery for commercial landlords, trusts of land, dilapidations claims, boundary disputes, rent and service charge recovery and lease renewal applications.
Richard Millard Managing Partner
Construction & Development 01908 689382Richard has over 20 years’ experience acting for clients in the construction industry, providing pragmatic advice to developers, contractors, sub-contractors, design and construction professionals, housing associations, smaller builders and homeowners.
Guy Brooks Partner
Dispute Resolution & Litigation 01908 689304Guy has more than 30 years’ experience in the legal profession and headed up the Commercial Litigation department of local firm Fennemores, before joining Geoffrey Leaver as joint head of the Dispute Resolution department in 2006. The Dispute Resolution department have been recognised by Legal 500 UK.
Trevor Coward Partner
Dispute Resolution & Litigation 01908 689311Trevor specialises in the closely connected fields of commercial litigation, partner/director disputes, insolvency, property litigation, and professional negligence. His background is one of broad experience across a wide range of commercial litigation. He is a member of Legal Counsel International, an alliance of lawyers in 17 countries.