Duties of former employees after the termination of employment

Abstract

As the saying goes, „an ounce of loyalty is a pound worth of cleverness‟. All employers operate in a competitive market. It would be more worthwhile to invest in training trustworthy persons, rather than employing persons who although very skilled, pose a risk of undermining the employer‟s competitive position by their disloyal behaviour, during or after employment. In order to remedy this, every employee is bound by the implied duty of fidelity which to some extent, also binds them after employment. This Term Paper centres on the extent to which this duty exists after employment has terminated. Section 1 outlines the main elements of the employment contract. This section particularly analyses the duty of fidelity, its origins, implications and its place within modern-time employment relationships. This section is thus the basis of the term paper, since it would be difficult to examine any existent post-termination duty of fidelity without defining its basic concepts. Section 2 provides a thorough analysis of permissible and prohibited acts of departing employees and ex-employees, and also the duties of ex- fiduciary employees. Such an analysis inevitably defined the extent of protection of the employer‟s confidential information and trade secrets by ex-employees and also defined what amounts to a trade secret, which is elemental in order to identify an employee‟s post-employment duties. Section 3 examines the inclusion restrictive covenants, restrictive penalty clauses and confidentiality clauses in employment contract. This section identifies the different types of covenants and lays out the requisites for a valid restrictive covenant. This section heavily relies upon Maltese judgments, which were only scarcely present in the previous sections. This term paper will therefore show that the extent of the duties of former employees towards their former employers depends on a balancing exercise between the right of employee mobility within the labour market and the right of employers to protect their business interests.