How to protect your business from departing employees: 7 steps for confidential information and restrictive covenants

To manage and reduce that risk, it’s common for employers to include express terms in employment contacts which restrict an individual from taking and using confidential information that could negatively impact the business once they have left the organisation. This is because the general law does not provide as much protection and certainty as carefully drafted express contractual confidentiality provisions do.

Senior employees are also typically subject to post-termination restrictions to prevent them unfairly competing with their former employers. These are the terms which are commonly referred to as “restrictive covenants”.

If there’s a concern a departing employee has taken (or will make use of) confidential information, there will be a number of legal factors that will often fall to a company’s legal department to address or mitigate.

These can result in complex and difficult legal scenarios that require careful handling to ensure the covenants are properly enforced and the company’s position is not prejudiced inadvertently. GCs will need to ensure the team acts swiftly and decisively to protect the business interests of the organisation.

Below are some of the key factors GCs should consider once a senior employee hands in their notice and there’s a perceived risk of them taking confidential information or breaching their post-termination restrictions.

This 7 step guide will be helpful in the event the employer needs to enforce its contractual rights to protect its business interests, including in some situations by seeking an urgent interim injunction against the employee or their new employer.