COMPETITION • FRENCH LAW • UNFAIR COMPETITION
Undertakings are free to hire former employees of their competitors. In order to prove wrongful hiring away or poaching of staff, it must be demonstrated how the departure of the employee(s) has disrupted the undertaking. The civil and commercial courts tend to take a sympathetic line with the employee and the new employer facing action for unfair competition. They consider that it is not forbidden for the new employer to discuss and agree on the terms of a contract and to commit to hiring the competitor’s employee, even before the employee has indicated to the competitor his or her intention to leave.
The solicitation of the staff of a competing undertaking is unfair when job offers to the employees of a competitor are carried out systematically and are accompanied by tactics clearly intended to disguise the hiring away. Both the attempted and premeditated poaching of employees are unlawful. However, mere presumptions are insufficient. The existence of a fault is necessary: hiring away must be intentional and lead to a major disruption.
Several types of hiring away have been identified : the massive or systematic poaching of the employees of a competitor or virtual competitor, concerted recruitment, shown by the concurrent departure of several employees, and poaching in order to misappropriate a competitor’s know-how.
