Update Employment Law June 2022
Injunctive relief due to enticement
Gera Labor Court, 3 Ga 2/22 - Judgment of March 8, 2022
An employee who has left the employment relationship with his employer may, in principle, entice away other employees of the former employer for a newly established company after termination of the employment relationship, if no post-contractual non-competition clause has been agreed and if he does not violate the Business Secrets Act.
In the present summary proceedings decided by the Gera Labor Court, an employer sought a court order to cease and desist from soliciting one of its former employees. After termination of the employment relationship, the employee had taken up a new employment relationship in a newly founded competitor company, informed employees still working for the employer about this and asked them several times by telephone or via "WhatsApp" whether they did not also want to change.
When the employer became aware of this, he applied to the Gera Labor Court in temporary injunction proceedings to order his former employee, under threat of an administrative fine, to refrain from soliciting his employees for employment with his new employer using data of which he had become aware in connection with his former employment relationship. The employer considered it inadmissible that his former employee used the telephone contact data of other employees for this purpose.
The employee, on the other hand, objected that he had neither specifically enticed someone away nor used personal data in an inadmissible manner for this purpose. Rather, he had obtained the telephone number privately, outside of the previously existing employment relationship.
The Gera Labor Court dismissed the injunction sought by the employer against the employee as unfounded, against which the employer has already filed an appeal with the Thuringia Regional Labor Court under file number 1 SaGa 2/22, on which a final decision has not yet been made now.
The Gera Labor Court is of the opinion that the employer has no claim to cease and desist against its former employee. Neither had the employee violated the German Trade Secrets Act by using the telephone number, nor had a post-contractual non-competition clause been agreed between the parties.
First, the Gera Labor Court states that there is no violation of the German Trade Secrets Act. Pursuant to Section 6 sentence 1 of the German Act on the Protection of Trade Secrets (GeschGehG), the owner of a trade secret may demand that the infringer refrain from any unauthorized use of trade secrets. It is true that the Gera Labor Court assumed in this case that the addresses or telephone numbers of employees are data that fall under the protection of the GeschGehG. Nevertheless, it rejected a claim for injunctive relief under Section 6 sentence 1 GeschGehG because the employer had not substantiated whether and in what specific way its former employee had used them.
Since, in the opinion of the Gera Labor Court, the employer did not substantiate a violation of the Trade Secrets Act, the decisive question was whether the employee was allowed to poach his former colleagues from his former employer.
In the opinion of the Gera Labor Court, this is the case, as no post-contractual non-competition clause was agreed between the parties in the present case. A post-contractual non-competition clause is a contractual agreement concluded between an employer and employee by which the employee undertakes vis-à-vis his employer to refrain from certain business activities after termination of the employment relationship, such as the establishment of a competing company or the targeted poaching of former work colleagues for the benefit of the new employer (cf. in this regard BAG, judgment of December 19, 2018 - 10 AZR 130/18).
In the opinion of the Gera Labor Court, there is no such agreement between the parties in the present case, as such an agreement was not expressly made in the present case. In addition, the Gera Labor Court also criticized on this point that the employer had not substantiated that the employee had even carried out the acts of enticement alleged by the employer.
The Gera Labor Court dismissed the employer's action both with regard to the alleged violation of the Trade Secrets Act and with regard to the acts of enticement alleged by the employer because the employer had not sufficiently substantiated these points presented.
From a procedural point of view, this case therefore shows that it is of enormous importance to ensure that the claims asserted are covered by one's own factual presentation in the event of a judicial assertion of (cease-and-desist) claims, that the factual presentation has been made in a conclusive and complete manner, and that it contains corresponding offers of proof or prima facie evidence. The devil is in the details here, so that it is always advisable for employers not to pursue a legal assertion of claims on their own, but rather to seek professional assistance from specialized attorneys for this purpose.
In addition, employers are recommended to agree a post-contractual non-competition clause with their employees. This applies in particular if, due to industry-specific peculiarities, it is to be feared that these could influence further employees to join them in the event of a subsequent change of employer. Since post-contractual non-competition clauses in employment contracts are often so-called general terms and conditions (GTC), it is also advisable to have them drafted by a lawyer specializing in contract drafting.