Checklist of practical steps to protect businesses from breaches of confidentiality

This checklist provides practical guidance and tips on how to best protect your business from breaches of confidentiality.  It covers things to consider and do in relation to pre-employment, day-to-day management and when termination notice has been given. 

Legal clauses to assist

You may wish to have an express Confidentiality Clause as information which is confidential to the business but does not amount to a trade secret will not be protected after termination of employment in the absence of an express clause. 

You may also wish to restrict an employee's activities (particularly in the case of a senior employee), both before and/or for a period after they leave, by way of restrictive covenants. Restrictive covenants must be agreed with the employee and this is usually done by including them in the contract of employment. They may also form part of a negotiated termination settlement. For an example, see our Restrictive Covenant Clauses. 

As an alternative or supplement to restrictive covenants, you may wish to put an employee on so-called “garden leave” during their notice period, which means they do not attend work and must not take up other employment during this period. Again, an express contractual term is required to enable this option. For an example, see our Garden Leave Clause.

All restraints must be carefully drafted and it’s always best to get legal advice to make sure that you stay on the right side of the law.

Monitoring

Remember if you want to monitor communications traffic or the usage of particular equipment, make sure you have a monitoring and data protection policy in place and that you comply with the latest data protection rules and best practice guidance.