Shh – home working and protecting trade secrets and other confidential info

A significant number of the national workforce are working from home due to the restrictions imposed by the Government during the COVID-19 pandemic.

It is crucial for businesses to remind their employees about maintaining confidentiality not least of their trade secrets. Caught up in the novel and sometimes challenging situation of homeworking, it is easy for employees to overlook this highly important issue, and the risks posed by it. Trade secrets are a type of intellectual property that include formulas, practices, processes, designs, instruments, patterns, or compilations of information that have significant commercial value because they are not generally known or readily discoverable by others.

Trade secrets are protected by law in the UK and throughout the EU, and protection relies on the business owning those secrets taking reasonable steps to keep them confidential. Once made public, any protection over trade secrets is lost. This could be disastrous for businesses. For example:

• if a secret formula or recipe is made public, others may be able to copy that formula to make and sell competing products;
• disclosure of information about new and innovative technology could prevent a business from obtaining patent protection for that technology;
• if information about a new manufacturing process is made public, others will be able to use this information to their advantage to compete with the trade secret owner.

Businesses must also remember that they will usually have obligations of confidentiality to customers, suppliers and business partners under contracts or non-disclosure agreements. Many of these will require compliance with strict obligations and will specifically require employees to observe those obligations. Failure to take appropriate steps to safeguard confidential information of another business could result in a claim for breach of contract, injunctive action and liability for damages.

Businesses should be taking all necessary actions to remind employees of their duty of confidence. In practical terms:

• Employees should think carefully about their new working work environment. If an employee’s dining room table has become their de facto office for the foreseeable future, others in the household, particularly in a house or flat share situation, may overhear conversations or oversee screens or printouts of information.
• Those employees who are lucky enough to have access to an outside space such as a garden or courtyard may like to take advantage of mild spring weather and take business calls outside. Employees need to be aware that calls can be overheard.
• Information security is vital – employees using home devices must have reliable and up to date anti-virus software to prevent hacking. Security is not just limited to computers – printouts must be disposed of or destroyed carefully through shredding or similar. It is not acceptable for employees to simply put papers in the recycling bin.
• Smart devices and virtual assistants such as Alexa, Google Home and Siri are vulnerable to eavesdropping. Although technology providers claim any listening-in is for the purpose of service improvement, there is no certainty as to which of their staff are listening in, and where in the world that is happening.
• Employees moving on from the business should be reminded of their continuing obligation of confidentiality.

Businesses should also consider an open reporting policy for any breaches of confidence that may occur in a homeworking situation – often accidental or unintentional on the part of the employee. This can also be vital in a business’s ability to act quickly to prevent any further disclosure, whether through injunction or otherwise, and to help with damage limitation.