In what appears to be one of the few times that a judge has felt justified in allowing the inspection and imaging of employees’ computers in the case of Warm Zones v Thurley and another, the High Court has ordered that an employer may instruct an independent computer expert to inspect and take images from the personal computers of two former employees.

The business was granted a mandatory injunction after information came to light which suggested that the individuals had misused confidential information belonging to the employer during their employment. The court took into account the fact that it had a high degree of assurance about the strength of the employer’s claim, and that the business had taken years and used significant resources to create the confidential information at the heart of the proceedings. The fact that the inspection and imaging would be carried out at the employer’s expense is also likely to have been an important factor in the judge’s decision making.

What is confidential information?

Almost any type of information can be regarded as confidential information. For example:

• Business plans.
• Financial information.
• Statistical information.
• Customer lists.
• Plans, sketches and drawings.
• Improvements to products or processes.

Confidentiality during employment and after termination

During their employment, an employee must not:

• Disclose to third parties the employer’s confidential information and trade secrets obtained during the course of, and as a result of, the employment.
• Use the employer’s confidential information for his own purposes.

After employment has ended, this duty survives but only to the extent that it protects trade secrets. Other confidential information may be protected but only by means of an express term in the employment contract.  Employers should therefore consider whether the need to include express clauses in their contracts and review the restrictions on employees to ensure they are still reasonable and fit for purpose.