The aim of the third edition of the definitive text on employment covenants and confidential information is to examine the conflicts of interest between the employer and his employees when an employee seeks to compete with the employer. There have been many changes in the 10 years since the publication of the second edition and the authors offer a comprehensive and timely review of all aspects of the law, practice and technique on restrictive covenants and confidential information.
Amendments and revision have been made to many of the topics included in the previous edition. Developments are highlighted in areas such as garden leave in relation to the 'right to work,' and in springboard injunctions. New chapters on fiduciary duties, database rights, international elements and team moves are introduced, reflecting the reality of an increasingly competitive and technology driven global marketplace.
Brearley and Bloch open by setting the scene outlining their aims and a synopsis of areas covered. They move on to explore subjects such as the implied duty of fidelity which is approached by an exploration of authorities on preparation to compete, especially in relation to team moves. Moving on to fiduciary duties, the two-stage Fishel test for fiduciary obligations is explored in detail and followed by a useful analysis of both pre and post-Fishel authorities.
The thorny question of the effect of an employer's repudiatory breach on discharging an employee's duty of confidence is addressed in the section on termination of employment. Legitimate protection for the ex-employer is examined in the context of implied duties and the reasonableness of express covenants. Of particular interest is the discussion of current trends towards the enforcement of restrictive covenants; the authors' view is that we are in an era which gives precedence to freedom of contract over freedom of competition - possibly judicial rejection of the traditional view of disparity of bargaining power between the parties. The authors provide evidence for this in the analysis of authorities, for example the use of severance of excessive parts of covenants leaving a protective 'rump' for the employer.
In the current economic downturn the section on the introduction and/or variation of restrictive covenants is particularly pertinent, and the effect of a TUPE transfer on these matters is considered alongside the implications of dismissing an employee who refuses to agree to a TUPE-related introduction or variation. The appendix to this section is invaluable for focusing the mind of an employer Of legal advisor in making the decision to introduce new covenants or vary existing ones.
When the previous edition was published, the Woolf reforms were very recent. The sections on general and specific interim remedies and on final remedies give up to date coverage of the position under the Civil Procedure Rules. There is consideration of whether the judicial approach regarding discretion in relation to interim injunctions under American Cyanide v Ethicon has been altered by the overriding objective. The section on preliminary considerations regarding remedies includes the new general Practice Direction on Pre-action Conduct and its impact on this area.
This edition contains a useful new section on database rights: as the authors point out, infringement of these rights may be an additional or alternative claim to that of breach of confidence. This is a complex area, particularly since the decision in William Hill 2005 but the availability of flagrancy damages may be attractive.
The new section on international elements reflects the issues arising from an increasingly global perspective to this area of law and practice. Jurisdictional issues, for example those in Duarte v Black & Decker present particular tactical and procedural issues for litigants and the experience and expertise of the authors is particularly apparent in this section.
Many of the chapters have a practical basis, not just useful to legal advisors but also to employers and human resources personnel. Checklists, tables, sample clauses and appendices are employed to assist the non-lawyer and those lawyers new to this area. There are exemplary precedents throughout with considered explanations of the reasons for choosing that precedent rather than others commonly used. The authors deliver sound, commercial advice on practical steps to protect the employer's interests, discussing ways to ensure employees are motivated and rewarded and how an employer can maximise the detection of competitive activities. Issues are addressed in an employer-friendly manner and it is good to see an evaluation of mediation in relation to discovery of competitive activity and the matters arising from this method of dispute resolution. The repeal of the statutory disciplinary procedures is discussed in relation to discovery of such activity but the authors are labouring under the perennial problem inherent in such a fast-moving area of law in that the new ACAS Code of Practice has not yet been tested through the courts.
The new section on team moves is to be welcomed. There are additional legal and commercial considerations associated with team moves, as compared with individual moves, and this section addresses those considerations. Early detection strategies, team strategies and possible responses by an ex-employer are discussed. Team moves are examined from all perspectives, including that of the original employer, the team, the 'poaching' employer and a financial backer. The possible use of the latest TUPE Regulations add an interesting dimension to team moves, particularly in the context of service provision change.
Possibly the target market for this work is somewhat ambitious. It is stated that the book is aimed at HR professionals and company directors, as well as employment lawyers. There are creditable efforts in the form of scene-setting, checklists, tables and case studies aimed at guiding the non-lawyer through this complex area of law, and many of the topics are dealt with in an employer friendly way. Nevertheless certain sections of this book would make hard reading for the non-lawyer and this is primarily book for legal professionals. Even Kate Brearley's 'extremely commercial' approach (Legal 500. 2009) and Selwyn Bloch's ability 'to make highly complex arguments sound like common sense' (legal 500, 2009) may defeat the less persistent non-lawyer. However this expanded and updated edition of the classic text on this subject is an invaluable addition to the armoury of any employment lawyer.
Communications Law 2009
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