Confidential information and trade secrets that are obtained by employees during the course of their employment are protected by an implied duty of good faith within all Contracts of Employment. However, employers would be well advised to extend this implied duty by the addition of some specific express terms within the Contract of Employment (i.e. confidentiality policy). The combined degree of protection provided by the express and implied terms will depend on the nature of the information at issue and the timing of the disclosure.
All employees are free to impart or use trivial information in relation to their employment in any way they please. However, confidential information and trade secrets, in particular, are areas where protection exists for employers. During employment, such confidential information and trade secrets can only be used for the benefit of the employer. Employees therefore will be in breach of their contract if they use or disclose information of this type for their own benefit or for the benefit of another employer or individual.
After employees have left employment, employees can use confidential information for their own benefit to the extent that the information is part of the employee’s general skill and knowledge that they have developed during their employment. The courts have held that this situation arises if it is inevitable that such information will be carried away in someone’s head. This however, does not include confidential information that has been deliberately memorised or that forms a part of an electronic database.
Trade secrets are protected at all times and even if such items have become part of an employee’s general knowledge, they are not at liberty to use it for their own benefit or that of someone else. Despite that fact that this is implied into every Contract of Employment, once again employers are advised to protect against any disclosure of a trade secret via an express term within the Contract of Employment.