VIEWPOINT FEATURE | |
Laying down the law
29 29
Martin Fleetwood
Protecting a Business's Confidential Information A number of recent news reports have observed that there has been a steady improvement in the jobs market since the start of the year
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ith this positive employment background and the current trend of rising inflation, there are an increasing number of employees now looking to either negotiate a significant pay increase or move jobs in an effort to get a higher salary. Given its constituent parts, this is not a phenomenon that the rail industry is immune from. When an employee, who as part of their job has had access to confidential information, moves on, are the company's controls strong enough to prevent some of that confidential information leaving with them? If the employee does leave with some confidential information, how easy is it for the company to demand its return – including all copies which may have been made? Heading Some helpful guidance can be found in the relatively recent case of Nissan Motor (GB) Limited, Nissan Motor Co Ltd (collectively referred to as Nissan) v Ravinder Passi. Mr Passi was employed by Nissan as Global General Counsel between 2012-2020. On his departure from Nissan, Mr Passi was asked to return any Nissan confidential information in his possession. Mr Passi's employment contract also contained certain obligations which survived the termination of his employment that related to returning confidential information. Shortly after leaving Nissan, Mr Passi started Employment Tribunal proceedings
against the company claiming that he was a whistle blower whose employment had been unlawfully terminated. During the course of those proceedings, Mr Passi relied upon numerous documents containing Nissan's confidential information. This was information that Mr Passi had failed to deliver up on his departure, despite being asked to do so. Nissan made an application to the High Court for interim injunctive relief against Mr Passi to recover all of its confidential information. Nissan contended that Mr Passi did not have the right to hold that confidential information and that he was obliged to deliver up the documents and destroy any copies that he retained upon the termination of his employment, owing to the express terms of his employment contract. In response, Mr Passi admitted that he removed documents, gave them to his solicitors and retained them for his own use. He said he did this for the purpose of taking legal advice in his Employment Tribunal claim and whilst he would be content to deliver the original documents up, he wanted to retain copies of them. Nissan argued this attempted justification was inadequate in both fact and law. High Court's decision In considering Nissan's application, the High Court applied the well-established three limb test for granting an interim injunction set out in the 1975 case of American Cyanamid Co v Ethicon Ltd. The court found that:
1. There was a serious issue to be tried: There was a clear argument that the documents retained by Mr Passi were the property of Nissan and contained confidential information, some of which was legally privileged. 2. Damages would not be an adequate remedy: Any later cash payment would not provide sufficient compensation for the effects of disclosing the confidential information on Nissan's business. 3. The balance of convenience lay with Nissan: Nissan had a strong position regarding ownership and entitlement to the document. This was strengthened because Mr Passi had retained documents without Nissan's knowledge contrary to the express provisions in his employment contract. The Court concluded that all the documents should be returned to Nissan and any copies that Mr Passi or his lawyers had retained should be destroyed. This would not prevent any application for disclosure of documents through the normal disclosure process for legal cases but a key issue was to discourage employees simply taking confidential documents that they considered may be helpful in any employment tribunal claim. Alongside its decision on the application for the injunction, the High Court also provided some useful additional guidance on confidentiality. • The confidentiality of documents was not lost if they were read or referred to in open court. Rail Professional
