[co-author: Ingrid Hesselbo]

It is increasingly common that there are disputes with employees at the end of employment about whether or not they have taken or retained an employer’s confidential information. Most employers have a provision relating to the use (and misuse) of confidential information and a requirement to return all company property at the end of employment in the contract of employment. There is also a common law requirement for employees not to use their employer’s genuine confidential information after they have left employment, so even if you missed the boat on the contract, employers have some protection.

Despite this, we are seeing increasing numbers of disputes arising in this area. This appears to be related to the fact that whilst in the not so distant past, it was quite easy to spot the departing employee leaving the building with the files under her arm, taking confidential information is no longer such a challenge. Add to this, the increase in flexible working and use of our own devices and you have a blurring of the lines between what is mine and what is yours that can lead to confusion and ultimately litigation. So how can employers deal with these issues?

Often the first step in any action is to ask the employee to provide access to their computer to work out if they have any of the employer’s information. If the employee says no to this, then it is possible to apply to the court for an order that they do so. In a recent high court case (Cox v Spencer [2017] EWHC 2552 (QB)), the employer was granted an order that meant it could image the employee’s computer to see if it contained any of their confidential information. The order appointed an independent IT expert to investigate the defendant’s personal computer and hard drive to see if they contained the claimant’s confidential information – or to see if that information had been deleted. Happily for the employer, the court also ordered that the costs involved in this exercise be split 50/50 between the parties.

In this case, the judge found that the defendant ‘did not put all his cards of the table’ when first asked if he had taken or retained any of the employer’s confidential information.  Although the costs of instructing such an expert to carry out this forensic exercise could be expensive, the court felt that this was not an argument for not instructing them. It was also held that the defendant had only himself to blame for there now being a search. This case shows that the actions of the defendant and the merits of the claim can influence the costs decision.

If you are seeking such an order, you will be more likely to persuade a court to rule in your favour if you are offering limitations and controls in the carrying out of any forensic search of the computer or other device. For example, by offering a limitation on what parts of the computer are subject to inspection, or requesting that inspection be with the oversight of the defendant’s solicitors, to ensure that the search is necessary and proportionate and personal confidential information is not reviewed.

Going to court for an order is always going to be the last resort and ensuring you have contractual protection, that your systems are robust and flag when employees are downloading large amount of information onto a memory stick and just generally being vigilant around departing employees and not being afraid to ask them if they have taken anything or to confirm that they have not, should be enough to head these issue off at the pass. However, this case gives comfort that in extreme circumstances, ex-employees can be ordered by the court to produce their personal computer and be subject to inspection and they may also have to pay for the privilege.