New practice: UK businesses assess risk of post-pandemic departures, and how to guard against them, as lockdown eases

Surveys show that lockdown has caused many workers to reflect on the work they do and how they do it, and their work-life balance. Observers are predicting that many will look for a new job – potentially taking clients, colleagues and/or company information with them.

A practical difficulty is that many of the signs of unrest among workers, evident in the workplace, are not so evident when they work from home – for example, taking private calls, disappearing for unexplained meetings, or copying or recording confidential information such as client details.

Steps employers can take to reduce the risk of workers leaving, or taking colleagues and/or confidential information with them, include ensuring:

• There are non-compete, no poaching and confidentiality clauses in their terms of employment (what lawyers call ‘restrictive covenants’) and these are tailored to each employee to ensure they are legally enforceable.
• Each employee has formally signed up to them, is regularly made aware of them and is reminded of them, in writing, if they leave.
• There are appropriate policies in place, such as data protection or social media policies, to protect confidential information, and workers are aware of these/receive training to ensure they are followed.
• Remuneration policies tie key employees to the business financially – for example, many businesses are considering share schemes after lockdown.
• Working practices meet workers’ needs, including offering flexible working, job shares, etc.
• Access to confidential information is limited, and monitored for unusual levels of activity.
• There is a process for workers who leave, designed to ensure they do not take confidential information or other business property with them.

Businesses should take particular care to protect trade secrets – information which is not generally known or easily accessible, is commercially valuable because it is kept secret, and which the owner has taken reasonable steps to protect. These can include customer lists, pay and pricing structures, technical knowhow or an algorithm.

Businesses should, for example, formally identify, record and securely store trade secrets in a document management system, label or mark them as secret, regulate and monitor staff access to them (whether kept online or offline), ensure staff can recognise a trade secret if they come across one, and ensure they know and abide by rules and policies in relation to them if they do.

There may also need to be procedures around trade secrets necessarily or accidentally revealed to third parties, such as contractors, potential collaborators or possible buyers of the business, including use of non-disclosure agreements.

Operative date

• Now

Recommendation

• Businesses should consider how to guard against employees leaving as lockdown eases, and how to minimise the risks to their client, supplier and other relationships, confidential information and other assets if they do.