• At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
  • Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
  • Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
  • Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
  • Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
  • In the fast-changing world of employment law our clients need practical, commercial and cost-effective advice. They get this from our team of employment law professionals.
  • Our team of leading IP advisors deliver cost-effective, strategic and commercial advice to ensure that your IP assets are protected and leveraged to add real value to your business.
  • Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
  • We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
  • We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
  • Our regulatory specialists work alongside Kemp Little’s corporate and commercial professionals to help meet their compliance obligations.
  • With a service that is commercial and responsive to our clients’ needs, you will find our tax advice easy to understand, cost-effective and geared towards maximising your tax benefits.
  • At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
  • We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
  • Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
  • We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
  • We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
  • For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
  • Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
  • The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
  • Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
  • Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
  • We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
  • Our legal professionals work alongside social media providers and users in relation to the commercial, privacy, data, advertising, intellectual property, employment and corporate issues that arise in this dynamic sector.
  • Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
  • Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
  • Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
  • Kemp Little is trusted by some of the world’s leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
  • HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
  • FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they don’t give away to get you started.

Technology issues on termination of employment

Technology has, in theory at least, enabled a much more productive employment relationship. For example, the advent of smartphones and tablets means, in theory, that work can be carried out at any time or in any place which should provide benefits for both employers and employees.

However, this flow of information via technological channels can result in a number of challenges and risks for employers, especially in relation to the termination of employment.  Swathes of confidential information are often predominantly stored on laptops or tablet devices which are invariably linked up to a smartphone meaning the potential for wide spread dissemination is high. Moreover, in the era of social media, there is plenty of scope for former employees to publish confidential information or inappropriate comments about their employer.
 
In this article, we explore some of these issues in more detail, and look at how best to manage the risks.
 
Inappropriate postings on social media
 
Social media unfortunately makes it very easy for a departing employee to disparage their employer or to reveal information about it.
 
Whilst an employer can’t do anything to guarantee that a former employee won’t post inappropriate remarks about them on a social media site, they can make it less likely and give themselves stronger grounds for taking legal action if a former employee does post something inappropriate. 
 
In particular, employers should ensure that their social media policy prohibits employees from talking about their employer, or on behalf of their employer, except with the employer’s express written consent, either before or after the termination of their employment.
 
If a former employee posts a potentially defamatory or otherwise unlawful statement, the employer should write to the former employee demanding removal of the content and putting the individual on notice of the causes of action that it has against him or her. These could include damages for breach of contract, if the employee agreed in his employment contract to comply with the employer’s social media policy.
 
The employer could also contact the host site seeking immediate removal of the material.
 
Unfair competition
 
As well as providing former employees with scope to disparage their ex-employers, social media also makes it much easier for former employees to keep in touch with their contacts when they move jobs. 
 
For example, when an individual changes jobs, LinkedIn would send out an update to that person’s connections.  In theory, an employer could require an employee to, for example, remove LinkedIn connections acquired during their employment.  In practice, however, this would be difficult to police and there would be little to stop the connections re-contacting the former employee themselves.
 
What this means, therefore, is that in the era of social media, enforceable restrictive covenants have become much more important.
 
The sorts of restrictions you should consider including in an employee’s contract including are: (a) a non-compete (to prevent the former employee working for/having an interest in a competing business); (b) a prohibition on soliciting clients/prospects or dealing with clients/prospects; and (c) a prohibition on employing fellow employees or soliciting them away from the ex-employer.
 
It is important to note, however, that post-termination restrictions of this nature are difficult to enforce – a court will only uphold them if they restrict the former employee no further than is necessary to protect the employer’s legitimate business interests.  Legitimate business interests can include the employer’s confidential information, their client base and the stability of the workforce.
 
It should also be noted that the reasonableness of restrictive covenants is judged by reference to the circumstances applying at the time that the employee signed them.  What this means is that restrictive covenants for key employees/roles should be reviewed from time to time, but particularly if an employee changes roles within an organisation  - what is appropriate (and therefore enforceable) in relation to one role, may not be appropriate/enforceable in relation to another role.
 
It is also important to remember that if an employer breaches an employee’s contract, the employee will no longer be bound by any on-going obligations (such as post-termination restrictions).  This could occur if the employer does something which amounts to a constructive dismissal of the employee, or more prosaically, by paying the employee in lieu of notice where it has no power to do so.
 
If a former employee does breach their restrictive covenants and these are enforceable, then the employer may be able to obtain an injunction against the employee to, for example, prevent them working for a competitor or dealing with particular customers.  Alternatively, the employer may want to bring a damages claim against the employee.
 
Retention/mis-use of confidential information
 
With the advent of remote working, USB sticks, tablets, affordable personal laptops and so on, it is becoming far more common for employees to store an employer’s confidential information on their personal devices (as often for convenience rather than for nefarious purposes).
 
Whilst during employment, confidential information is protected, following termination, only the narrower category of trade secrets (in effect a sub-category of confidential information which has a very high degree of confidentiality) are automatically protected by law.  It is therefore important that employers have properly drafted confidential information provisions in their employment contracts which identify all the relevant categories of information which are confidential and which are expressed to continue following termination of the employee’s employment.
 
The employment contract should also contain provisions prohibiting the employee from making of copies of documents except as necessary for the purpose of their duties and requiring them to return or destroy all copies of confidential information on the termination of their employment.  It is also advisable for employers to reserve for themselves a right to inspect the employee’s devices to ensure that their confidential information has been deleted from them.
 
Monitoring employee communications
 
One way in which employers may try to ensure that they are aware of potential leakages of confidential information, or potential unfair competition by their employees, is by monitoring employees’ communications (for example email, phone calls or internet usage).
 
Whilst in principle this might sound like a useful tool for employers, it also brings risks with it.  Most obviously, if employers are undertaking monitoring without good reason or in a disproportionate manner, this may place them in breach of the Data Protection Act 1998.  Historically, data protection legislation has been viewed as relatively ‘toothless’, but over recent years this has changed (for example with the increase in April 2010 in the maximum fines that the information commission could levy to £500,000).  Moreover, it will continue to change when the draft Data Protection Regulation comes into force as this moots fines of up to 2% of an organisation’s annual worldwide turnover. 
 
If an employer undertook monitoring of its employees in an inappropriate manner, or particularly if it singled out a specific employee without good reason, it might even face a constructive dismissal claim from the affected employee(s).
 
It is therefore advisable to have a clear policy explaining what types of monitoring the organisation may be doing and why, and what will be done with the information.  This should help ensure that employees do not have an unrealistic expectation of privacy in relation to their work communications. 
 
Employers should also ensure that the amount and invasiveness of any monitoring they undertake is proportionate to the perceived risk to their business, should consider alternative (less invasive) ways of protecting their interests and should ensure that any information obtained is kept secure and only used for the purpose for which it was obtained.
 
Accessing documents that are password protected or encrypted
 
Where information is confidential it is important that it should be protected by way of passwords, encryption etc.  Employers would be well-advised to spell out this requirement to its employees in an appropriate policy.  Equally, the policy (or employees’ contracts) should include an obligation on employees to provide details of passwords before the termination of their employment.
 
If an employee fails to provide details on termination of their employment, the first step would be to ask the employee to provide these voluntarily.  If the former employee is subject to a contractual obligation to provide these, there may be scope for the employer to take legal action against the former employee if they refuse to cooperate. 
 
In addition, there are various software programmes which can be used to “break” passwords or encryptions.  For example:
 
  • Dictionary attacking (this can establish the password used) – as its name suggests it ‘attacks’ the password recognition system by using all the words contained in a plain text dictionary. This is a relatively quick process and therefore useful if time is of the essence.
  • Brute force attacking (this also can establish the password) – the software will use all possible character combinations for a specified password length. This is most effective when the employer knows how many characters are in the relevant password but it is a slower process when compared to dictionary attacking due to the number of potential combinations.
  • Decryption (this can provide access to the document but not the password) – this software will try all possible character combinations and when successful it reveals a decrypted file but note that no password will be revealed.
Equally, if an employee has deliberately wiped data, there are various ways of potentially recovering this.
 
Conclusions - how some of these issues might arise in practice and how to tackle them
 
The pervasiveness of technology has undoubtedly made it easier for former employees to do damage to their employer’s businesses.  None of the problems should be insurmountable, however – the key is anticipating the types of issues that may arise and ensuring that you have the technical systems and legal policies in place to ensure that you are able to address the issues if they do occur.