Confidential information is one of a business’ most prized and valuable assets. However, it is rarely something that can be locked in a safe, because employees often require access to it for the purposes of carrying out their duties.
Below we consider how confidential information is protected in England and what options are available when confidential information is misused.
In the absence of express contractual confidentiality restrictions, the English courts will act to protect and prevent former employees from using ‘trade secrets’. This category is limited to confidential information of the highest degree, such as secret manufacturing processes, chemical formulas or confidential methods of construction. An often-cited example of a ‘trade secret’ is the recipe for Coca-Cola. The hurdle for information to be considered a ‘trade secret’ is high but, if reached, such information will be protected after termination of employment even in the absence of express confidentiality restrictions, and there is no time limit on the protection.
Information that falls short of being considered a ‘trade secret’ will be ‘mere confidential information’, either because an employee is informed that the information is confidential or because they are aware it is (for example, because of the nature of their job or because the information is marked as confidential). In the absence of an express confidentiality protection, such confidential...
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