Review all senior and/or key employee contracts to ensure that they contain, where appropriate:
- confidentiality provisions that expressly cover the periods both during and post termination of employment;
- clauses preventing the employee from soliciting and/or dealing with customers;
- a prohibition on the employee competing with your Company within a defined geographical area. Consider listing named competitors that they are not permitted to join and compete with you after they have left;
- a ban on the employee poaching senior staff that he or she worked with during their employment;
- provisions that stop them from being allowed to refer to themselves as being associated with your Company after they leave;
- a clause that requires them to return all Company property on termination of their employment, including but not limited to all documentation, presentations, emails and copies of such documents, whether in hard copy, electronic copy format or otherwise.
- Ensure that any existing restrictive covenants are reasonable in duration and scope. The covenants should be tailored to the individual employee and reviewed regularly to ensure that they are up to date and reflective of any changes in the employee's function, responsibilities and/ or seniority.
- Consider placing an employee that has resigned on garden leave without access to customers or employees, provided that the contract of employment permits it, for the duration of all or part of their notice period. If there is no entitlement to place employees on garden leave, consider updating these agreements, although note that the prior consent of any existing employees should be sought to the amendments before their implementation.
- Review the Company's IT policy to ensure that it allows monitoring of email and internet usage during employment and that it requires employees to set passwords on their computers when they switch on and for any period of time when they are away from their computers. This minimises the risk of unauthorised access to confidential material.
- the sending of emails from "work" email accounts to "personal" email accounts perhaps without the prior authorisation of the line manager. This can help defeat the argument often raised by employees that they were sending the information "in order to do some legitimate work at home".
- the use of USB sticks, portable hard drives, CD roms or other electronic devices without prior authorisation from their line manager.
- Ensure that emails are backed-up regularly so that they can be called upon for review if required.
- Consider whether it is appropriate to have an exiting employee's computer forensically analysed in order to establish whether confidential information has been downloaded, emailed or otherwise taken from the Company. Ensure that the computer is not switched on by anyone within the Company prior to an image being taken by a professional forensic software company to avoid allegations of tampering.
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