French labour law: the use by a company of a private investigator (detective privé) to follow an employee (salarié) that violates its non-competition clause, is illegal

This decision of 26th September 2018, (n°17-16020) specifically ruled on the question of the use of a private detective in connection with the finding of the breach of a non-competition clause by a former employee.

In this case, the Court of Cassation considers that the fact of having followed its employee for several hours by a private detective constitutes unfair behavior on the part of the employer which justifies the latter being ordered to pay damages to the employee.

On the other hand, it does not directly rule on the admissibility of this type of evidence and suggests that it would be perfectly permissible.

In practice, however, it is necessary to assess with great caution the risks incurred, since if the amount of the damages owed by the employer exceeds that of those which he can obtain because of the breach of the clause, better it is worth giving up the use of a private investigator.

In this case law, the Douai Court of Appeal, confirmed by the Court of Cassation, had sentenced the company to pay the sum of 3,000 euros to its former employee.

To read all the decision, please click on the link below

https://blogavocat.fr/space/frederic.chhum/content/french-labor-law-illegal-use-private-detective-detective-priv%C3%A9-follow-employee-who-violates-its-non-competition-clause-c.-cass.-16092018-n%C2%B017-16020_

C. cass. 26 septembre 2018, n°17-16020

https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000037474145&fastReqId=2095113773&fastPos=1

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
Membre du Conseil de l’ordre des avocats de Paris
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