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...