UK: Search and Seize…The Order of the Day

Last Updated: 11 August 2010
Article by Nicola McMahon

The problem

A survey conducted last year found that 58 percent of British workers would be prepared to take confidential business data from their employers if they were made redundant. An employer who believes that an ex-employee has taken and misused confidential information, in breach of express or implied contractual terms, could bring a high court claim against the individual and seek an injunction to prevent further misuse of the information.

When bringing such action employers will need to act quickly to collate evidence which demonstrates that the ex-employee took the confidential information. However, any steps taken by individual to cover their tracks and conceal theft of confidential business information are looked upon with a heavy hand by the civil courts. Employers who have some evidence of theft or misuse of confidential business information can apply to the court for a search and seizure order, authorising them to search the ex-employee's home and remove any evidence which shows that they have taken or used business data. Individuals who fail to comply with a "search and seize" order, or any subsequent injunction granted by a court preventing the ex-employee using such information, risk imprisonment for the civil offence of contempt of court.

The law

A party who wilfully or deliberately breaches a court order could be found to be in contempt of court. Contempt of court is a quasi-criminal offence which means that guilt must be established to the criminal standard, beyond reasonable doubt. Whilst, traditionally, custodial sentences were reserved primarily for criminal proceedings they can also be imposed for contempt of court.

A recent string of cases has led to the development of more detailed sentencing guidelines for contempt cases. Factors that a judge will take into account when considering the appropriate sentence for such an offence include the following:

  • Whether the breach of the court order was deliberate or unintentional;
  • Whether the individual appreciates the seriousness of the breach;
  • Whether the individual has made a sincere apology for his or her contempt;
  • Whether the individual has frankly admitted his or her contempt and has entered the equivalent of a guilty plea. The earlier the admission is made, the more credit should be given for this;
  • If, despite admitting contempt, the individual disputes the extent and gravity of his or her breaches and the court disagrees with those arguments, the individual will forfeit some credit associated with the admission; and
  • The individual's character and relevant antecedents.

The maximum penalty for contempt of court is a two year immediate custodial sentence or an unlimited fine. Suspension of a custodial sentence is often used as a means of securing compliance with the court order.

Expert advice

Employers need to be vigilant to ensure that employees who have either been given notice of termination or who might be tempted to jump ship do not take confidential information with them when they depart. As a preliminary step, employers should ensure that their confidential information is adequately protected so that employees are obliged under the terms of their contracts of employment to maintain confidentiality of any valuable or sensitive information. Without such protection, employers might find themselves unprotected and without a remedy if ex-employees misuse confidential information.

Whilst employees are subject to implied duties to protect their employer's confidential information during employment, the only implied term which continues after the termination of employment is the non-disclosure of trade secrets. The courts have limited the definition of trade secrets to confidential information at the highest level, for example secret manufacturing processes. Therefore, to ensure other confidential information is protected, employers should make sure they include express obligations of confidentiality which continue after the termination of employment in individual employment contracts. Such express restrictions will enable an employer to bring a claim against an ex-employee for breach of contract and to seek an injunction preventing the misuse of any confidential information that he or she takes from the employer on departure.


If you are an employer applying for a court order authorising you search the home of a former employee in order to investigate the theft of your business's data, not only do you need to catch the employee unaware to have maximum chances of finding crucial evidence, but, if nothing is discovered, the former employee may be able to claim compensation for inconvenience. However, such orders can be useful tools when an employer is suspicious that their ex-employee is trying to conceal evidence which proves that they have taken confidential information in breach of the terms of their employment, particularly in light of the penalties for non-compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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