Employee left - Gone to competitor, taken our database

[SilentNight]

Hi,

Any help appreciated.

Any employee of 4 years recently left the company without working his notice to take a job at a company in the same sector. They offer more services that we do but their services include what our business offers and the ex employee is now managing this area.

He was not a manager when he worked for us.

Our customers are being contacted by him and he is trying to compete for our business.

Very similar to a thread on here titled "Ex-employee has copied our database" that I can't link to.

Our database is stored in Outlook and anyone with basic knowledge can access it.

There is a clause in the contract that states employees or ex employees must not disclose or use confidential data, but is this enforceable as the vast majority of the contacts in the database the names are publicly available online, the email addresses are not hard to guess. What constitutes confidential data?

We also have a clause that states he cannot "deal with, solicit or endeavor to entice away any person, firm or company that is a client or customer" of whom "you had knowledge of during the course of your employment". But is this enforceable for information that is available publicly?

We have wrote to him and threatened legal action if he persists in his actions, do we have a leg to stand on if we need to take it further though?

 

[OldWelshGuy]

you need to contact the new company as they must be made aware of this illegal use of data. Hopefully someone will come along with the correct legal knowledge soon.

 

[Rainbow Chasers']

I would take some advice! I think you will find, that if there is a clause in your contract he can be held account for that - and also the information is your property and he has in effect stolen that.....he, and the other company if they use it, can be in a whole heap of trouble!

I would get some advice, as there seems to be a few issues there.

I would contact a 'trusted' customer (possibly one you are very friendly with) and get them to give you a nod if the dtails are used by the other company.

 

[mountrecruitment]

I am in no way the most relevant person to advise on this topic but Recruitment does come with some strict contracts and i have spoken to solicitors about similar clauses etc.

Some key points (unless others know otherwise) are:

These clauses are not easy to pursue but there are cases that have stood up in court
you can be on dodgy ground if the contract creates a situation where you are restricting someones ability to work (see more here http://www.roydens.co.uk/content09.htm)
If the new employer is aware of his actions that gives more leeway

Anyway i am sure others will be able to help more but basically if your contract with him was comprehensive but not overly restrictive then you should be able to enforce it.

My suggestion would be to get some evidence that this is happening then find out where you stand legally and approach the new employer pointing out that they could be held accountable......my guess is he will stop.

In recruitment these things are only applicable for a specific period of time (generally)

best of luck!

 

[SilentNight]

Thanks for your advise so far.

What you have said seems to contradict what is said in the similar thread I mentioned.

ukbusinessforums.co.uk/forums/showthread.php?t=149450

I guess that is one of the ambiguities of the law and why there are so many Grey areas!

My worries are that we could go into a long and expensive legal battle for nothing. I guess it comes down to confidentiality, and being completely honest and playing devils advocate...can a database thats in Outlook thats accessible to the whole company be considered private? And can the data that is inside it be considered confidential if 95% of it is available online and with a bit of brain power.

After all thats how we compiled the majority of it in the first place, from public sources. Although there is still that 5% that is not.

 

[mountrecruitment]

Best of luck with it.

For future reference, a false client with full details and tel number etc in amongst all the others is a good way of finding out if the data is ever stolen in the future.

 

[Chris Ashdown]

I personally think there is no milage in going after him,

I would contact everyone and state that mr xxx has now left the company and no longer acts as our first point of call, Mr/Mrs YYY will now be taking over his old position and I have asked him/her to contact you as soon as possible to introduce himself / herself and also update you on some new products and prices we have newly introduced

If they have been happy with your sevice in the past they are still a hot lead if you treat them right and even the tiniest discount always goes a long way and can wrong foot a compeditor

 

[HFE Signs]

I'm no expert in this area but I would certainly contact the company and make them aware, they have two issues to consider...

1) As previously pointed out, the data belongs to you and its your intellectual property.

2) They have employed a new person who is very dishonest and likely to do the same to them in the future.

If I we’re the new employer this recruit would not last the 3 month probation. I expect this is a case of what goes around comes around, this person will end up with no job in the long run, and if I were you I’d do my best to make it sooner rather than later.

In the mean time I hope you manage to keep hold of your customers, in addition as a customer I would stay with the original company for the ethical reasons.

 

[steve23]

I think Chris has hit the nail on the head - don't worry about it and move on.

There is always someone trying to take business from you - that's life.

In this case it's an ex emplyee. As you said yourself, the info he has could be worked out by others anyway.

So he just becomes another competitor.

What you need to ask yourself if why the company he works for should be any threat to you.

If there is any obvious reason, then it would only have been a matter of time until you lost your customers to them anyway.

This ex employee may have done you a favour - a review of how things are going with customers etc and what your competition may be doing is never a bad thing !

The customers chose you in the first place - so you are already ahead in the game.

All the best

Steve

 

[unet]

I agree in respect of moving on however, I would get a solicitor to send a very strong threatning letter to both the new company and the scummy ex employee. While it wont get your customers back it may give one or two people a restless night or two.

GL and you are better off without employees like that.

 

[Deleted member 61074]

...can a database thats in Outlook thats accessible to the whole company be considered private? And can the data that is inside it be considered confidential if 95% of it is available online and with a bit of brain power.

After all thats how we compiled the majority of it in the first place, from public sources. Although there is still that 5% that is not.

Is this really just a list of your customers or is it also a list of potential customers? The reason for asking is that you say you obtained this info from publically available data, surely if it were a customer list you would have obtained the data from the customers themselves

 

[SilentNight]

Is this really just a list of your customers or is it also a list of potential customers? The reason for asking is that you say you obtained this info from publically available data, surely if it were a customer list you would have obtained the data from the customers themselves

Its both, but the vast majority of it are potential customers. Although that data was collated over many many man hours.

Oh well, looks like I'll have to hope the threatening letter works.

 

[Deleted member 61074]

You will be on a hiding to nothing asking them not to approach potential customers, you could have a case with your ex employee contacting your current customers though. Your problem is the fact you have one DB for both lists.

I'd favour writing to your current customers letting them know your ex employee is ex and now working for a competitor.

 

[McKenna Hughes]

I agree that it would be worth sending a strongly worded solicitors letter to both the company and the ex-employee. The company, once on notice of the fact that the ex-employee is acting in breach of contract, could also be found guilty of inducing a breach of contract. I have had plenty of experience of employees in the past who have taken and used sales/customer lists and yes, it is expensive to prevent them from using the information. The best way to approach this is to threaten the new employer with legal action and to also make customers aware that if they are approached by this other company then this may be as a result of the unlawful use of confidential data.

If your employees are made aware that the customer list is information which you consider to be confidential then it does not matter on what media this information is held. Going forward though it would be a good idea to password protect this data and only make it available to those employees who really need to use it for your business. You should also consider reviewing and strenghtening your employment contracts to ensure that you have better protection should this arise again.

 

[VeryMark]

If the database is your original work and has had skill and labour put into creating it, then it is your intellectual property and its use by any third party is legally actionable.

Databases can be protected either through copyright or the new database right. For copyright to apply, the database must have originality in the selection or arrangement of its contents whilst, for the database right to apply, the database must be the result of ‘substantial investment’.

It is, of course, possible that a database will satisfy both conditions so that both copyright and the database right exist.

The database right is established in the same way as copyright, i.e. by evidence of origination and ownership.