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Case law spotlight: Are employees entitled to keep confidential documents following termination of employment after they've been asked to return them?

When an employee leaves your employment what do you do to ensure that they have returned all your confidential information? Most employers rely on either a contract of employment setting out the obligations on an employee to return company property on exit or on asking an employee to provide a written confirmation that everything has been returned or deleted. Some employers suspect confidential information has been taken and request undertakings from employees that effectively provide a 'legal promise' that the confidential information has been returned or destroyed.

But, what if the ex-employee has been uncooperative in returning property, been illusive, says that they have returned or deleted everything, then during an Employment Tribunal claim against you they disclose a list of the documents they will be using in the Employment Tribunal, and it lists documents that contain your confidential information.

In a recent case, Nissan v Passi, the High Court had to consider a case where the ex-employee had taken confidential information and wanted to use the documents as evidence in his Employment Tribunal claim for whistleblowing

The ex-employee said that he had taken the documents from his employer for the purpose of taking legal advice. He also said that he had wanted to keep the documents because he did not believe that his employer would disclose the documents in the Employment Tribunal proceedings after he brought a claim for whistleblowing.

The High Court held that the ex-employee could not hold on to the documents and granted the employer an interim injunction for the return and deletion of the documents. The Judge pointed out that in the Employment Tribunal, the employer, as the party in possession of the documents, would be under an obligation to make full and proper disclosure of the documents. The Judge also noted that if the ex-employee believed that the employer had failed to make disclosure he could then make an application on that basis.

The protection of confidential information is critical to many businesses and the thought of it being stolen and then used against an employer is extremely worrying to employers. This case provides reassurance that an employer can take steps to ensure that ex-employees cannot simply take the information and be allowed to use it.

Practical steps you can take to protect confidential information

• Ensure you have well drafted confidentiality provisions within contracts of employment which are clear on an employee's obligations in respect of confidential information both during and after employment
• Have a clear definition of what is considered to be 'confidential information'
• Place a contractual obligation on an employee to return company property on termination of their employment, including any documents which contain confidential information
• Place a contractual obligation on an employee to permanently delete copies of any confidential information on any personal devices or storage systems
• Be proactive in reminding departing employees of their obligations in respect of confidential information

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