Case No. HC07C02914

23. The Claimant contends that both Mr Rider and Mr Stimson were bound by the terms of a Company Handbook. This document had been in preparation from 2006. Both Mr Rider and Mr Stimson were aware it was being prepared for issue. This contains some express restrictions not to be found in the earlier documentation (Mr Stimson had none of those of course). Thus paragraph 1.14 stated that an employee could not be involved directly in any other business or other work without the Claimant’s consent. Mr Rider acknowledged in cross examination that that was common sense but I do not regard that acknowledgment as being an acknowledgment by him that he agreed this provision. 24. Section 4 (paragraph 4.1) provided that no confidential information belonging to the company should be disclosed during and after the period of employment and that the provision continued after termination of the employment until the information came into the public domain. Clause 4.2 obligated the employee upon termination to return all equipment, correspondence, records etc which were in their possession, power custody or control.25. The Handbook was not issued until 1st June 2007 when Mr Rider and Mr Stimson had left 7 days of their notice to run. They were not given a copy. Indeed the evidence was when copies of the Handbook were handed out they were expressly told there was not one for them. 26. I find it a fact that the Terms of Employment between the Claimant and Mr Rider and Mr Stimson did not include the Company Handbook. There is in my view no evidence to show that the parties agreed the Handbook would bind them in the future and I do not see that the Claimant can unilaterally vary the terms of the contract of employment for these employees when they were working out their notice. They gave notice in accordance with the then terms. Suppose for example the Handbook imposed a restrictive covenant which operated for (say) 12 months. I do not see that it could be argued that the issue of the Handbook 7 days before the termination of the employment could in effect unilaterally impose a new and onerous obligation on the employee working out his notice. Taking all of those into account I do not accept therefore that the Handbook has any relevance to the issues before me. THE CLAIM 27. The Claimant contends that Mr Rider (ignoring the claims in respect of the Handbook) as an employee owed a duty of good faith and fidelity, was subject to an implied obligation not to copy, remove or misuse any of the Claimant’s confidential business information with a view to use in a competing business. In addition the Claimant contends by reason of the seniority of his employment he owed a fiduciary duty to act in good faith, not to act so as to place himself in a position of conflict between his personal interests and those of the Claimant, a duty not to use or cause to be used any information or opportunity available to him by reason of his employment and his position as a fiduciary for any purpose other than furthering the interests of the Claimant, a duty to account to the Claimant for any personal gain or profit made using information or an opportunity that became available to him by reason of his employment and position of fiduciary and a duty to disclose to the Claimant any misconduct or breach of contract or duty by himself or Mr Stimson.28. The Claimant contends that Mr Stimson was subject to the same employee obligations and fiduciary duties and similarly was in breach of those duties.29. In voluntary further information served 2nd November 2007 the Claimant identified the references to confidential information contained in the Particulars of Claim. The list is as follows:- (i) Names, addresses, contact names, telephone numbers or email addresses or the Claimant’s customers; (ii) Sales figures for the Claimant’s customers; (iii) Profit margins for the Claimant’s customers; (iv) Details of goods ordered by the Claimant’s customers or priced paid by said customers; (v) Names, addresses and contact details of the Claimant’s suppliers; (vi) The Claimant’s suppliers‘, agents’ names, addresses and contact details; (vii) The Claimant’s suppliers’ carriage costs, lead times, types of products available, trade shows visited, or the cost negotiated with such suppliers