Employer's right to cease and desist from soliciting behaviour

The Labour Court of Gera (judgement of 08.03.2022, ref.: 3 Ga 2/22) dismissed a company's interim injunction against a former managing director. In particular, the enticing behaviour did not give rise to a claim for an injunction under section 6 (1) of the GeschGehG.

1. the facts

The applicant company (personnel service provider) sought an interim injunction to restrain a former managing director from engaging in soliciting behaviour. The managing director had already founded a new company together with the authorised signatory before leaving the plaintiff company. This company competed directly with the plaintiff. Subsequently, numerous employees and temporary workers resigned. They all started working for the newly founded competitor company.

With its interim injunction, the plaintiff company seeks an injunction against this soliciting behaviour - in particular using data which the former managing director had acquired in connection with his former employment.

The Gera Labour Court dismissed the action. The plaintiff company has appealed against this decision.


2. the decision

The Labour Court did not consider a claim for injunction under section 6 (1) GeschGehG to be given . According to this, the owner of a trade secret can claim injunctive relief against the infringer in the case of a threatened infringement or in the case of a repeated infringement.

However, according to the Labour Court, there was no infringement of the law. It was true that the collected address and telephone data were to be regarded as business secrets. However, no use of the collected data (alone or jointly) had been alleged. In any case, the numerous notices of termination alone did not indicate that the data had been used. Furthermore, it was not substantiated that the former managing director had influenced the active employees and/or the temporary workers.


3. conclusion 

It is a vexed issue for many companies. Unfortunately, labour law instruments do not usually help in these constellations. The path of an injunction to cease and desist can be taken if the pressure of suffering is very high. In this case, however, the specialist lawyer for labour law should be able to present sufficient evidence. In serious cases, it is also possible to file a criminal complaint with the public prosecutor's office if you can prove that individual offences under the GeschGehG have been committed. Experience shows, however, that such a case must be solidly initiated - i.e. comprehensively prepared and intensively accompanied.

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