Confidential Information: Two wrongs don’t make a right

In Brandeaux Advisers (UK) Ltd and others v Chadwick, the High Court found that Ms Chadwick was in repudiatory breach of contract when she sent large amounts of her employer's confidential information to her private e-mail address and that the possibility of litigation with her employer was insufficient to justify the breach.  Brandeaux made a claim for damages equating to the salary paid to Ms Chadwick for the period between her breach and the eventual dismissal date.  This was rejected.

Ms Chadwick was employed by Brandeaux as Head of Research and Business Development. During her employment she suffered from ill health and raised concerns regarding her bonus and other matters.  In January 2010, Ms Chadwick started to send large quantities of confidential information to her private e-mail address. In May 2010, following consultation meetings resulting from advice that her role was at risk of redundancy, Ms Chadwick was given three months' notice of dismissal.  She was put on garden leave, her e-mail account was examined and the transfer of the confidential material was discovered and Brandeaux obtained an injunction against Ms Chadwick.  After a disciplinary hearing, Brandeaux summarily dismissed Ms Chadwick for gross misconduct on 22 June 2010.

This case is a clear message that even when litigation is afoot, it is most unlikely that this will ever justify an employee copying or transferring confidential documents.  Good news for employers.  However, where the High Court rejected the employer's attempt to recover the salary it had continued to pay to the employee prior to their becoming aware of the breach. Whilst the contract of employment continues and the employee continues to serve, there is a right to be paid. The company had "the benefit of her work", even when she was on garden leave (which was permitted under the contract).