Confidential information and trade secrets in employment
Produced in partnership with Ruaraidh Fitzpatrick of Cloisters
Confidential information and trade secrets in employment

The following Employment practice note Produced in partnership with Ruaraidh Fitzpatrick of Cloisters provides comprehensive and up to date legal information covering:

  • Confidential information and trade secrets in employment
  • Categories of information—generally
  • Distinguishing between trade secrets and confidential information
  • Distinguishing between confidential information, general skill and knowledge and other information
  • Information which ceases to be a trade secret or confidential
  • The implied duty—during employment
  • The implied duty—after employment
  • The implied duties—exceptions
  • Defences
  • Publication
  • More...

As noted in Practice Note: The duty of fidelity and fiduciary duties, the duty of fidelity implied into every contract of employment will generally prevent an employee from disclosing to third parties confidential information which comes to their knowledge during the course of their employment. In addition to this, certain very confidential information, generally known as trade secrets, will be protected by the equitable duty of confidence. These two duties have combined historically to determine the implied duty on an employee in relation to confidential information.

The manner in which business information is categorised is therefore very important; while an employee will be under an implied duty not to disclose trade secrets and/or confidential information to third parties during employment, only the implied duty not to disclose trade secrets will continue after the employment ceases.

An exception to this general rule is that the employee may be prevented from taking advantage, after their employment has ended, of a breach of the implied duty that occurred during their employment (see Practice Note: Springboard injunctions in employee competition claims).

Information which cannot be categorised as either a trade secret or confidential information is generally not capable of protection either under an implied duty or by way of an express restriction.

For information on:

  1. how business information is categorised generally, see Confidential information and trade secrets in employment—generally, below

  2. how to

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