[co-author: Bairta Mezhueva]

Imagine that you are the General Director of a company (the Russian equivalent of an American CEO), and your information security department finds out that an employee, who you have long suspected of industrial espionage, has sent important confidential information belonging to the company to his personal email address. In that situation, what would you do? Would you (a) do nothing for the moment and wait until you have more definite proof of industrial espionage; (b) make the employee tell you why he sent the information to his personal email address; or (c) dismiss the employee? Clearly, you need to find out who the information is being sent to and maintain your reputation for enforcing the rules.

Finding out who your employee is sending the information to does not mean that you are committing yourself to continuing to employ him. Section 81 (6c) of the Russian Labor Code provides employers with ways to deal with such a situation: the employer has the right to dismiss the employee for disclosure of trade secrets. But you should be aware that the employee may then go to court and seek reinstatement. What is a court likely to do in such a case?

Everything depends on whether you can prove that the employee has disclosed a trade secret. “Disclosed,” in this context, means that the employee has sent the secret to one of your competitors. If you are unable to prove that the employee has disclosed a trade secret, then the court will reinstate the unsatisfactory employee. In such cases, the courts have failed to adopt a consistent approach. Some courts have ruled that an employee who has merely sent information containing trade secrets to his personal email address cannot be said to have disclosed such secrets unless there is proof that he also transferred them to a third party. However, in another case, the court ruled that sending information to one’s personal email address can constitute disclosure of the employer’s trade secrets, and that the employer is justified in dismissing such employees. In the latter case, the court ruled that if the terms of the employee’s agreement with his email provider specify that the provider may restrict access to information contained in emails in the account, then sending confidential information to a personal email account will constitute a disclosure of such information.

The takeaway point is this: if you’re a business looking to protect your trade secrets under Russian law, and your employee has sent confidential information to his personal email account, you can dismiss him, but you should be aware that a court may reinstate him for the reasons described above.