Part II - Information Protected During the course of Employment

Looking forward and planning for the post employment or retainer relationship requires an appreciation of the nature of the information that is protected both during and after the employment relationship.

Information acquired during the employment relationship may fall into two separate categories:

1. information (confidential or otherwise) that may be used post employment, as the quality of confidence is lost at the end of the employment relationship;
2. trade secrets that may not be used after employment relationship has ended.

The boundary of the law with respect to these two types of information is this: whether the information in question is fairly considered part of the employee’s stock of knowledge which a person of ordinary honesty and intelligence would recognise as to be the property of their former employer. If the question is answered affirmatively, the information is confidential and protectable. Answered in the negative and the information is characterised as know-how and not protectable, falling into the general knowledge or know-how of the employees’ own trade, and employees may use it.

A court will be more inclined grant relief to an employer on the basis that information is a trade secret where:

1. the employee habitually comes into contact with trade secrets
2. the information disclosed meets the requirements of the test set out in the previous paragraph
3. the nature of the information was impressed on the employee – this best supported with contemporaneous evidence in writing
4. whether the alleged trade secret may be separated from other less important information

Types of Information Protected

Instances of confidential information that have been successfully protected in the courts are:

• Unpublished catalogues
• Customer lists
• Mathematical formulae
• Prices and products sold to customers
• Engineering drawings
• Technical information
• Manufacturing processes, such as printing methods
• Chemical processes
• Management accounts
• Reactions to drugs
• Concepts for television series
• Feasibility studies
• Plans and designs for new products
• Client or customer information
• Technical maintenance procedures
• Pricing and sales information

In the absence of post-contractual restrictions, at best a court will restrict use of sensitive information for a finite period of time when the information has become public.