08 July 2016 #Employment
In an age where employees are easily able to copy, store and upload confidential information, employers are having to become increasingly vigilant to prevent such information ending up in the wrong hands. This was an issue for the claimants in Arthur J Gallagher Services (UK) Limited and others v Skriptchenko and others. The Claimants were a group of companies providing insurance brokerage services. Upon leaving one of these companies, Mr Skriptchenko took the Claimants’ client list with him and used it to approach over 300 of the Claimants’ clients after joining a competitor firm.
The Claimants successfully applied for an order to inspect electronic devices and computers belonging to Mr Skriptchenko and his new employer. The Claimants were also granted an order that if any confidential information relating to the Claimants was found, it was to be destroyed. In the absence of any previous authority on the destruction of confidential material, the High Court provided a detailed explanation as to why an order for destruction was appropriate in this case. The Court was particularly influenced by the “high degree of subterfuge” in this case and the fact that Mr Skriptchenko and his new employer knowingly breached confidentiality. The Court agreed with the Claimants that Mr Skriptchenko and his employer could not be trusted to delete any confidential information themselves and so a third party was appointed to inspect and destruct the material.
Although a small victory for employers, Mr Skriptchenko and his employer admitted that they had breached the Claimants’ confidentiality which played a key part in the Court’s willingness to grant an injunction. Employers who suspect but have little evidence to show that an ex-employee has taken confidential information are likely to face greater difficulties. To guard against this risk, employment contracts should clearly set out the employee’s obligations on termination which employers may want to mirror in a Bring Your Own Device to Work policy.