Work value

By BHAG SINGH

Employers need employees and vice versa, unless a person can manage and run a business entirely on his own. Every person will be either an employer or employee except for someone who chooses not to work at all.  

The employee looks to his remuneration as the return for the work that is done. On the other hand the employer expects that the employee does productive work which helps to advance the employer's business. 

In the course of work, an employee does not only benefit through the remuneration that is received but also indirectly gains from what is learned on the job, acquiring new skills and knowledge. 

In some cases the employee may have had completely no knowledge of the work that he does. In other cases an employee may have had training in relation to his/her work. In such cases the employee also gets extra knowledge when working to familiarise himself with the practical aspects of such work. 

An employee who has worked with a specific employer for a reasonably long time becomes an asset. An asset in whatever form is always valued. What can an employer do to prevent the loss of such an asset?  

In a way when an experienced employee leaves it is likely to cause some disruption unless an equally capable person takes over. Ironically a competent employee can lull an employer into a sense of complacency through the very reliability which is engendered. 

The situation is worsened when such an employee chooses to join a competitor. The loss of the employee is aggravated by the gain of the rival. Not only will the new employer have the benefit of acquired expertise but also certain information which such an employee is bound to have gained from his previous job. 

This is because a competent employee is likely have become privy to some confidential information. 

What option does an employer have? Can he tie him down forever? Can he prevent the employee from joining a competitor?  

It is not possible to tie an employee down forever or even for a specified period. At least this cannot be done directly.  

This is particularly so in view of Section 28 of the Contracts Act 1950 which provides that “every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void.” 

Such a restraint is possible elsewhere. The laws of England provide restraint of employment provided that such a restraint is reasonable in terms of area and time. 

However disclosure of confidential information is a separate issue. The fact that an employee can leave the employer and join a rival is not a licence to disclose confidential information. 

What is confidential information? Whilst disclosure of confidential information is clearly prohibited not all that an employee knows comes within the ambit of confidential information. 

An employee is likely to be exposed to a variety of information. Such data will no doubt help increase the expertise of a person. The law prohibits the use of confidential information but not knowledge. So what is the difference between information and knowledge? 

Information and knowledge are two words that are common. The Oxford Dictionary of Current English describes “information” as “something told, knowledge or items of knowledge”. On the other hand “knowledge” is described as “awareness or familiarity (with a person or thing) a person's range of information, understanding of a subject” or “the sum of which is known”. 

Yet information and knowledge are not exactly the same. As Ian J Lloyd says in his book Information Technology Law , “Knowledge is an illusive condition though it may be represented in the form of information when it is recorded in a paper or in a computer disk or conveyed in the form of a spoken word. But knowledge includes with a sense of understanding the subject matter.”  

Thus information may be easily transferred from one person to another but knowledge is less easily disseminated and falls into a somewhat different category.        

A person cannot therefore be restrained from using his skills and knowledge. In this connection a passage from the judgment of Farewell L. J. in Sir W.C Leng & Co vs Andrews in referring to the doctrine of restraint of trade aptly stated: “That doctrine does not mean that an employer can prevent his employee from using the skill and knowledge in his trade or profession which he has learnt in the course of his employment by means of directions or instructions from the employer. That information and that additional skill he is entitled to use for the benefit of himself and the benefit of the public who gain the advantage of his having had such admirable instructions. The case in which the court interferes for the purpose of protection is where use is made, not of the skill which the man may have acquired, but of the secrets of the trade or profession which he had no right to reveal to anyone else – matters which depend to some extent on good faith.”