Employment law in France – Cass. soc. 26-6-2024 no. 22-10.709 F-D, Sté Wavestone c/ W.
The poaching of employees by a recruiter for the benefit of a third party company constitutes gross misconduct where there is intent to harm. This is the point made by the Court of Cassation in its ruling of 26 June 2024 (no. 22-10.709), handed down between the company Wavestone and one of its former recruitment managers.
Gross misconduct occurs when an employee commits wrongful acts with the sole aim of harming his employer or, as in this case, when he acts in his personal interest while being aware of the harm caused to the company. In this case, a senior recruitment officer engaged in several acts during the performance of his employment contract, despite being bound by an exclusivity clause with his employer.
Among these acts, the employee recruited employees for a third-party company, whose profiles were similar to those sought by his employer, which was active in management and information systems consulting. He also took part in poaching several of his employer’s employees, using information and the information system made available to him, and submitted applications to the third-party company that were initially intended for his employer.
Dismissed for gross misconduct, the employee contested the decision. The Court of Appeal held that the dismissal was based on gross misconduct, arguing that the personal interests pursued by the employee did not make it possible to establish malice. However, the Court of Cassation overturned this ruling, holding that the fact of working for a third-party company, using the employer’s resources to poach employees and divert applications, was sufficient to establish malice.
Employment law in France
Case law also points out that, like serious misconduct, gross misconduct deprives the employee of severance pay and notice pay, but entitles him or her to compensation for paid holiday. However, only gross misconduct can give rise to civil liability on the part of the employee towards his employer, and can result in the employee losing the benefit of the portability of health and provident cover in the event of unemployment.
This ruling illustrates the need for employers to be able to identify and punish behaviour that is detrimental to their interests, particularly when the employee uses the company’s resources for competitive purposes. The obligation of loyalty to the employer remains an essential basis of the contractual relationship and cannot be ignored by employees, even in the absence of an exclusivity clause.