Unfair poaching

The termination of an employment contract must be carried out in accordance with the formal and substantive procedures laid down by law.

As regards resignation, only the procedural requirements apply. These consist of notifying the employer of the resignation in writing and observing the notice period, the duration of which varies depending on the occupational category.

In the case of dismissal, the procedural requirements involve, in addition to giving notice, referring the matter to the labour inspector.

As regards the substantive conditions, these relate to the accuracy and sufficiency of the grounds cited for authorising the dismissal.

Unlawful poaching occurs when a worker who has unlawfully terminated (i.e. in breach of the formal procedure) their employment contract takes up employment with another employer.

The new employer is therefore jointly and severally liable for the damage caused to the previous employer (Article L.56) under the following conditions:

1. Where it is shown that the employee’s recruitment was part of the poaching (i.e. the employer used every means to induce the employee to leave their job, in breach of the prescribed procedure),
2. Where the employer has hired a worker whom they knew to be already bound by an employment contract,
3. Where the employer has continued to employ a worker after learning that the worker was still bound to another employer by an employment contract.

In this third case, the new employer’s liability ceases if, at the time they were notified, the employment contract unlawfully terminated by the employee had expired, either in the case of a contract of indefinite duration, upon the expiry of the notice period or if a period of fifteen days had elapsed since the termination of the said contract.