Company correspondence as evidence in litigation, part 4 – The Supreme Court’s position on the commitment of an act of unfair competition by an employee

In its judgement of 11 September 2014 (II PK 49/14), the Supreme Court took a very strict approach to the matter of an employee committing an act of unfair competition. In this judgement, the Supreme Court held that the mere fact that the employee sent himself the employer’s confidential documents to his private e-mail box, if this takes place without the employer’s knowledge and consent and is not justified by the performance of his duties, constitutes the use of third party information constituting a trade secret, which threatens the employer’s interest (i.e. an act of unfair competition). In the facts of the case reviewed by the Supreme Court, after tendering his resignation, the employee sent a number of e-mails containing contact details of the employer’s current and potential customers, production plans and prices of the employer’s products to his own private e-mail address in order to go to work for a competitor. The employee’s actions were not dictated by the need to take care of his own interests and use company correspondence in order to demonstrate the validity of claims raised against the employer in court proceedings and therefore the position of the Supreme Court, in the facts presented in such a way, appears reasonable.

In principle, the Supreme Court does not refuse employees the right to present evidence to demonstrate the validity of the position presented by them, even if the evidence contains the employer’s confidential information. In its judgement of 15 July 2011 (I PK 12/11), the Supreme Court held that the employee’s use of even confidential information of the employer in the court proceedings to prove his claims, i.e. the desire to win the case, cannot be classified as a manifestation of disloyalty to the employer.

Similarly, it should be accepted that company e-mail correspondence may be presented as evidence in court proceedings pending between a former employee and the employer if that correspondence was obtained by an employee legally and the employee is only using it to protect his interest in the court proceedings. It appears unreasonable to accuse the employee that he sent e-mail correspondence to his private mailbox to use it in future/possible litigation with the employer. Very often, bullying, discrimination or other acts by the employer, which are in conflict with labour law, constitute a subject of company correspondence, to which the employee does not have access after notice is given of termination of the employment contract. This means that a person, who is taking care of his interests, should aim to justify the position he is to present in court and prepare for such an eventuality appropriately early. On the side-line, in order to avoid any doubts, I would like to emphasize that preparation for litigation cannot be based on the employee illegally obtaining information (i.e. through deception, obtaining information by way of theft or hacking into the equipment where the employer keeps the information in order to restrict unauthorized access). Such acquisition of evidence can expose the employee to criminal liability.