Leaving Can Be So Hard

An employee owes common law and equitable duties to his or her employer. Both import duties of fidelity and loyalty. The most significant difference lies in the nature and scope of remedies for breach of those obligations. In this setting, the demarcation between law and equity can be elusive, particularly if an employee occupies a fiduciary position. The implications are explored with respect to a breach of confidence by an employee who appropriates an employer’s confidential information to assist in setting up a competing business. Starting from first principles, an employment relationship is founded in contract and if fiduciary duties arise, they are circumscribed by the terms of that agreement. The relevant legal regime will determine whether the employer is confined to damages for breach of contract or whether equitable relief in the form of equitable compensation and an account of profits can be granted. This is explored by reference to the fundamental concepts which underlie the employment relationship and their engagement with law and equity.