During employment

During employment, in the absence of any specific wording to the contrary, the copyright in any work created by an employee during the course of his or her employment will vest in the employer by virtue of S11(2) of the Copyright Designs and Patents Act 1988. As well as the obligations that an employee has towards his or her employer which are set out in a contract of employment (the “express” terms), an employee also has additional implied terms such as the duty of fidelity and the duty to maintain confidentiality.

We always advise our clients to commit to writing all of the terms that will govern issues relating to copyright, intellectual property rights and confidentiality in an employment relationship. By doing so, misunderstandings can be significantly reduced and the company will be better protected.


Post-employment

In our experience, all too often, insufficient consideration is given to what obligations (if any) should apply once the working relationship has come to an end.

In the absence of any contractual term to the contrary, once the employment relationship has ended, so long as the employee does not disclose “trade secrets”, he or she has no further duty to maintain any degree of confidentiality about your business. This potentially can be very damaging particularly as trade secrets are narrowly defined by case law.

Where key employees are concerned, we would advise you to take steps to protect your business after the end of the relationship by ensuring that employees are prevented from poaching staff and clients or where appropriate, working for competitors. Unless the individual’s contract of employment includes post-employment obligations, an employer cannot seek to restrict a former employee’s activities once they have left.

The starting point adopted by the Courts in considering post-employment obligations is that any attempt to restrict the activities of a former employee amounts to an unreasonable restraint of trade. It will therefore be unlawful. However, the law do recognise that in certain cases, employers do have legitimate business interests to protect and for that reason, the Courts will enforce post-employment obligations provided they go no further than are absolutely necessary to protect the employer’s legitimate business interests.

By ensuring that the contracts of all senior and key employees contain carefully-drafted restrictions, you will be able to maximise the chance of such clauses being upheld. This will ensure that your business is adequately protected for a specific period of time once the key employee has left your company.

What can we do for you?

We can assist you by reviewing or drafting your contracts to ensure that the company is adequately protected in terms of confidentiality during and post employment. We can advise you how best to protect your intellectual property. We can also review your existing post-employment obligations clauses to determine whether they are likely to be enforceable, and if necessary, with your input, we can tailor clauses which not only meet your business requirements but which will also be legally enforceable. We can also advise on the most appropriate steps to avoid litigation where the company is seeking to employ a senior individual who is bound by post-employment obligations from a previous employer.