In a recent case before the High Court, Kerry Group was successful in securing interim injunctions against Pedro Oliveira, one of its employees. The injunctions were to prevent the defendant Mr. Olivieira from divulging information to third parties.
In this case, Mr. Oliveira had resigned on 25 June 2018. He was put on garden leave for a month due to concerns relating to his sending of emails off site. He remained employed with the plaintiff during that time.
It was argued by the plaintiff that there was strong evidence that Mr. Oliveira had removed confidential information about the company’s brewing ingredients business and was in discussions with a competitor. As such there was a breach of the restrictive covenants in his contract of employment. The evidence was that, firstly, on 23 June 2018 just prior to tendering his resignation, the defendant had come to the premises with a suitcase and backpack, and there was a concern that company property had been removed, as a filing cabinet had been emptied. Secondly, the defendant had forwarded 295 emails to his personal email address. A forensic IT analysis showed that 100 of these emails contained confidential information.
Mr. Oliveira’s claim that the emails were for back up and were not confidential were not persuasive enough, and in this case Ms. Justice Caroline Costello granted the interim injunction.
So what does it take to be successful in securing an interim injunction?
It can be difficult to succeed in such types of motion. Before a court will order an interim injunction there needs to be clear evidence which suggests that the employee has taken confidential business information. This is often in the form of client lists or highly commercially sensitive business information, which in this case was Kerry Group’s brewing ingredients. It might not always be the case that a company sees an employee taking company property or information, and so employers may need to enlist the assistance of IT forensics in order to see what an employee may have sent by email.
Having clear policies on the use of IT and email systems, will also assist an employer. Whilst it may seem obvious and common sense to an employer that an employee should not send themselves confidential information, having these policies in place leaves no real question that the employee could have thought otherwise. Similarly, employment contracts should contain appropriate restrictive covenants which are specific and relevant to the employee’s role as well as clauses on confidential information to avoid any possible ambiguity for the employee.