Employees must remain loyal to their employers if we refer to Article L1222-1 of the French Labor Code, which specifies: “The employment contract must be executed in good faith.”

However, companies increasingly fall victim to misconduct and disloyal behavior from employees, leading to serious consequences for the business (harm to its reputation, assets, expertise, or organizational structure) and resulting in damage.

Examples of unfair practices by employees include :

  • Working for a competitor while on leave or medical absence
  • Slandering their employer or company.
  • Misusing working hours for personal purposes.
  • Protected employees using delegated hours for other professional or personal activities.
  • Breach of non-compete agreements.
  • Moral or sexual harassment.
  • Embezzlement of goods.
  • Misuse of company equipment for personal gain during working hours

Our intervention

Cabinet Arnoult International makes use of its expertise and experience to assist businesses in either preventing or addressing disloyal practices from employees.

In addition, our legal expertise allows for the implementation of tailored processes to protect and serve the employer’s legitimate interests.

 

Our investigation reports can be submitted before the four competent jurisdictions (Civil, Commercial, Criminal, and Employment Tribunals).

In accordance with regulations and case law, we define an action plan to face the unfair practices affecting businesses while adhering to a strict regulatory context.

We provide evidence that, according to case law, is lawful and proportionate regarding the legitimate interests of the company (Surveillance, Tailings, Formal Notice to Disclose, Interviews, Collection of testimonies in the form of affidavits related to Article 202 of the Civil Procedure Code, Request supported by Article 145 of the Civil Procedure Code…).

Service agreement

For each mission, a contract is drafted, specifying the purpose of the mission, the methodology, the financial terms, and the timeline for execution.

Lead investigator

Your case will be handled by a dedicated lead investigator who’s going to be your only contact, in charge of coordinating and managing the investigations.

Investigation report

At the conclusion of the investigations, a detailed, thorough, and precise investigation report will be drafted. It may be presented, if necessary, before the competent jurisdiction.

Example &
Practical

An employee bound by a non-compete clause resigned their position as a Marketing Manager. However, the former employer became aware that the individual had allegedly been hired by a direct competitor.

Initially, a digital forensic analysis revealed that the individual had extracted the client database shortly before leaving the company. Subsequently, our investigations confirmed that the former employee had been hired as a Sales Director by the competitor.

Using these two reports, our client’s attorney secured the appointment of a commissioner of justice (formerly known as a bailiff) to visit the competitor’s premises in order to obtain, on the one hand, the employment contract of the former employee and, on the other hand, a copy of the hard drive from their laptop.

case law

Our firm constantly strives to update the legal and jurisprudential framework of our services, particularly in drafting mandates that define the legitimate scope of our interventions.

According to case law, a report drafted by a private investigator is a lawful means of evidence, provided that it does not interfer with the right to privacy (Versailles Court of Appeal, June 25, 2007, n°05-08465) and remains proportionate to the legitimate interests of the claimant (Court of Cassation, 1rst Civil chamber, October 10, 2012, n°11-1747).

Ruling n° 371500 of the Council of State: Cancels the ruling of Lyon Administrative Court on the grounds that [translated] « the use of delegation hours by an employee for another professional activity breaches their duty of loyalty towards their employer ».

Ruling n°12-35072 of the Court of Cassation (Social Chamber, January 15, 2015): « The employee who carries out, for their own account, construction works at one of the company’s client’s place, fails in their duty of loyalty. »

Social chamber n°00-40-894, June 4, 2002: The Court of Cassation admits that engaging in professional activity while on sick leave does not necessarily constitute disloyal behavior unless the act causes prejudice to the employer. However, constant case law holds that the prejudice will be more often characterized when the professional activity may be considered as « competitive »  (Court of Cassation Social chamber, June 23, 1999, n° 97-42-067; Social chamber, October 21, 2003, n°01-43.943; Social chamber, October 23, 2010,  n°09-67.249), even if we’re talking about a professional training provided by a competitor (Court of Cassation Social chamber, May 10, 2001, n°99-40.584).

An investigation report may be admissible in Labor court if conducted using loyal methods :

While, generally, the surveillance of an employee by a private investigator is not admissible as evidence, since evidence collected against an employee through unfair or concealed means cannot be used to justify a sanction or dismissal (Court of Cassation Social Chamber, October 23, 2005), this principle may be mitigated in certain cases..

Firstly, on December 6, 2007, the Court of Cassation recognized the right to tail an employee who was engaged in illegal activities during working hours. Additionally, a ruling on July 16, 2014 stated that administrative recourse to a private investigator to establish an employee misconduct did not violate the duty of loyalty.

For reference, Article L.1222-4 of the French Labor Code states: No information concerning an employee may be collected through a device that has not been brought to their attention beforehand (Social Chamber, February 4, 1998, Social Chamber, November 6, 2008)