Employment - Protecting company interests

Notice periods are controlled by employment contracts, though key people often work periods greater than required by law. Statute mandates workers employed for more than a month to give their employer at least one week's notice before they leave. In theory, giving less than seven days' notice could pave the way for you to sue for a breach of contract and for any damages that you may incur. Such actions are rarely successful, normally expensive and could waste time, effort and money.

There is an implied duty that employees should not take confidential information when they are leaving a firm. You could think about asking for the return of any proprietary documentation and computer disks, however the information carried in an employee's head will be far more difficult to identify or prove as the property of your company should any particular damage happen to your firm.

Introduce contractual terms for employees that set out the notice period required for termination of employment. Statute controls the minimum period allowed: employees must have one week's notice after one month's employment, two weeks after two years and three weeks after three years; to a maximum of twelve weeks after twelve years.

Your employee's statutory requirement to give notice equals one week after one month of employment unless the contract requires them to give one, three, or under exceptional circumstances, six to twelve months' notice. The length of notice required from your employees requires careful thought, because in a dismissal following warnings, or in a redundancy situation, you are bound to honour this long period of notice or pay for it in lieu.

Consider introducing a confidentiality clause covering both the duration of employment at your firm and the worker's future employment elsewhere. It is common to associate this with a restrictive covenant (see p.14, PB, January 2008) that forbids an employee from going to work for an existing client or competitor within a certain period of time and distance. Courts tend not to like restrictive covenants because they are a restraint of trade and effectively can prevent an individual from earning a living. Covenants of this order should be drawn up carefully and precisely; to instigate them you are well advised to seek professional help.

You may be able to obtain an Anton Piler order from a judge to search your competitor's premises where an employee has removed your company's property. You would need to present strong evidence to a judge that the ex-employee had removed confidential information and taken it to your competitor, showing further that this action would damage your business seriously. These orders are expensive and as such are best considered by taking legal advice.

- Peter Done, managing director, Peninsula.