Protecting your Intellectual Property, Confidential Information and Data when an employee leaves

A staff member who resigns can present challenges when it comes to protecting the Intellectual Property and Confidential Information of the business. A recession or the current pandemic can be responsible for more staff movement and at a time when the business is focused on business generation or even fighting to survive. For these reasons it is better to prepare for staff movement before having to deal with it. A good start is to review your current position should a staff member leave.

The recent trend to home working has also made it important to review current policies. Confidential Information can also include data that may be stored on home computers and other devices. Your current data policy may not reflect the new reality and as well as issues with the theft of Confidential Information and Intellectual Property care needs to be taken to ensure data security for the purpose of data protection regulations. 

While employed, an employee has duties to keep confidential information confidential and an employer will own all Intellectual Property created by the employee in the course of his or her employment. After an employee leaves however, the position is that an employee only needs to keep confidential information which can be shown to have been confidential by the employer.

It is often unclear to an employee what is and what is not confidential information. A list of clients or customers clearly is confidential but there are grey areas. It is vital therefore to set out in the employment contract or your business policy document what the business confidential information consists of so there is clarity in this issue. Likewise, your internal data protection policy should be reviewed to make sure it reflects your current IT set up and all employees are aware of the rules around data use within the business. 

Once an employee resigns you should make sure you have all necessary passwords to access their work and the ability to take control of their accounts. It is also worth making sure they understand the position on intellectual property, confidential information and data protection before they leave to reduce the chance of an inadvertent use of work or data as a result of a misunderstanding of the position.  Being prepared for an employee leaving in the ways described here will greatly reduce the chance of your valuable assets and data being used in ways they should not. Some work in these areas now will make any change in personnel easier to manage and avoid unnecessary time and resource being expended in these matters at a time when the business has other priorities. 

Written by Margaret Briffa, Partner