A senior employee has started working for a competitor while still on gardening leave. What can we do?

When an employee is on gardening leave, he or she is still considered to be a full-time employee.

Weightmans partner Michael Green, who works in the law firm’s commercial dispute resolution team, suggests seeking immediate legal advice on obtaining an injunction to ensure the employee refrains from further breaches and delivers up all confidential information concerning your business. This would be based on provisions and restrictive covenants in the employment contract. You might also consider bringing an action for damages in respect of the breaches to date, if you can show damage or loss.

Many breaches committed by leaving employees happen before their employment ends and include gathering information from the employer’s systems, client databases and financial records.

Green recommends: “Ensure all contracts of employment contain express provisions obliging the employee to act in the best interests of the company at all times and making it clear that all IT usage will be subject to a screening policy.”

In addition, he recommends a full exit interview, monitoring of email and internet activity for the notice period and sending the employee a letter to remind them of their contractual obligations and post-termination covenants. When they leave, you can ask them to sign a declaration to the effect that they have handed over all retained property and no longer have in their possession or control confidential information or company property.

He concludes: “If you discover a breach, act fast. Any delay may prejudice your right to injunctive relief and to serve a notice to the employee to preserve documents.”