Duties of Ex-Employees

In Chapter 4 we saw that the employee owes a duty of faithful service to his employer and part of that duty is not to divulge, or otherwise misuse, confidential information. This duty is either implied into the contract by the common law, or it may be an express term of the contract. This raises the question, however, of the protection afforded to the employer once the relationship has come to an end. The damage that may be caused to an employer’s business by a third party’s learning trade secrets or secret processes is just as serious whether passed on by a present or a past employee. We have already seen that the courts grapple with the problem of distinguishing between what is confidential to the employer and what may be said to be part of the skills acquired by the employee during his period of employment. This problem becomes more acute once the employment relationship has ended, for the new employer will be ‘buying’ the employee for his skill and knowledge. Consequently, the courts are wary of any attempt to restrict the employee after the termination of his contract. Having said that, some restrictions are allowed, and there are two methods which may be invoked. These are discussed below.