SINGAPORE Law and Practice Contributed by: Kelvin Tan, Benjamin Gaw and Lim Chong Kin, Drew & Napier LLC
Non-Solicitation of Employees Clauses prohibiting the solicitation of employees pro - tect an employer’s legitimate proprietary interest in maintaining a stable and trained workforce. The rea - sonableness, and consequently the enforceability, of such clauses may turn on whether the former employ - ee has influence over the categories of employees that they are restricted from soliciting. 3. Data Privacy 3.1 Data Privacy Law and Employment Applicability of the PDPA There is no employment-specific data privacy law. In general, employee personal data is governed by the general data protection legislation in Singapore – ie, the Personal Data Protection Act 2012 (PDPA). The PDPA governs the processing of individuals’ personal data by private sector organisations and is administered and enforced by the Personal Data Pro - tection Commission (PDPC). Under the PDPA, personal data is defined as data, whether true or not, about an individual who can be identified from that data, or from that data in conjunc - tion with other information to which the organisation has or is likely to have access. This would include the personal data of employees (full time and part time) and job applicants. Need to Obtain Consent From Individuals The PDPA requires organisations to obtain consent before collecting, using or disclosing an individual’s personal data, unless otherwise required or authorised under written law, or an exception under the PDPA applies (“consent obligation”). Consent is validly given if the employer has provided the individual with information regarding the purposes for the collection, use or disclosure of the personal data (as the case may be) on or before collecting the personal data (“notification obligation”). Exceptions to Consent Section 95 of the Employment Act requires all employ - ers to maintain detailed employment records of
However, it should be noted that a restrictive covenant containing cascading restrictions that are intended to accommodate the blue pencil test, or the insertion of a modification clause that provides that restrictions will be modified in order to make the covenant valid, may not save an otherwise unenforceable restrictive covenant. The MOM and tripartite partners are currently devel - oping a set of tripartite guidelines to shape norms and provide employers with further guidance on the inclu - sion of restrictive covenants in employment contracts. The MOM has said that employers should generally avoid including restrictive covenants in employment contracts for lower-paying jobs. Enforcement If an employee breaches a restrictive covenant, an employer can apply to court for an injunction to restrain the employee from continuing the breach. The employer can also seek damages. The employer may also have a claim against the new employer if the new employer has induced the employee to breach the restrictive covenant clauses. However, a restrictive covenant cannot be enforced by employers who have themselves committed a repu - diatory breach of the contract that is accepted by the employee. Therefore, an employer who has wrong - fully dismissed an employee cannot enforce any non- compete or non-solicitation clause. Employees who believe that they are affected by unreasonable or unjustified restrictive covenants may seek assistance from their unions, TAFEP or MOM. 2.2 Non-Solicits The principles regarding restrictive covenants dis - cussed in 2.1 Non-Competes apply to non-solicita - tion clauses. Non-Solicitation of Customers Clauses prohibiting the solicitation of customers pro - tect an employer’s legitimate proprietary interest in its trade connections. For such clauses to be enforce - able, there must be personal knowledge of and influ - ence over the customers of the employer.
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