Restraint on competition and protection of confidential information in the field of employment : a comparative analysis

Abstract

The most valuable assets of many modern businesses are not the raw materials, the finished product or the physical equipment that turns one into the other. Instead they are intangible: a chemical formula, the principle on which a new device operates, or the identities and preferences of a carefully-cultivated clientele. Tangible property may be chained and guarded but the business's confidential information which is learned, used or developed by individuals cannot be protected so easily. From the employer's point of view, there is always the possibility that an employee or a former employee enters into the employ of a competitor or sets up a competing business, and in that event, unfairly exploit the employer's proprietary information for his benefit or for the benefit of his second or new employer. It is thus important for businesses and employers to know the manner and the extent to which they can protect their confidential information and prevent unfair competition from employees or former employees. The first chapter of this thesis is concerned with the manner in which the employer is protected from competition involving his own employees, in the course of the employment relationship. Secondly, this chapter determines the manner in which the employer's confidential information is protected against disclosure or misuse by the said employees. The second chapter deals with whistleblowing, which is an exception to the duty of an employee not to misuse or disclose his employer's confidential information. The purpose of this chapter is to analyse, in some detail, the new provisions of law which have been introduced on this matter, in the Employment and Industrial Relations Act. The third and final chapter is concerned with the manner and the extent to which an employer may protect his confidential information from disclosure or misuse and prevent competition from former employees.