![]() The recruits were found to have acted in breach of fidelity and the equitable duty of confidence. The defendant recruits, who were former employees of Trailfinders, were found to have unlawfully copied the information during their employment and to have unlawfully accessed the information after leaving, in order to compete. In Trailfinders the recipient was a franchisor which had encouraged its recruited franchisees to provide it with customer contact lists upon joining the franchise. 4 (4) of Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition: “ The acquisition, use or disclosure of a trade secret shall also be considered unlawful whenever a person, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of paragraph 3.” Further, this was now also the statutory position because under Art. It was objective: in equity the recipient is under a duty of confidence whenever he ought to know that the information received is fairly and reasonably to be regarded as confidential, irrespective of his actual state of mind. In the recent case of Trailfinders v Travel Counsellors & Ors EWHC 591 (IPEC) the court reiterated that the test was not subjective: the recipient of the client list did not have to know the information was confidential. I now turn my attention to the state of mind required to make an employer liable for breach of confidence when it receives a client list from a recruited employee. Knowledge that it might be is not sufficient. I reported by reference to the recent case of Allen v Dodd that in order to be liable the employer must know that it was inducing a breach. In my blog piece on 28 February 2020, I looked at the state of mind required to make an employer liable in tort for inducing a breach of contract when it employs a person subject to post-termination restrictions.
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