Irregularly obtained e-mails after the departure of an employee still accepted as evidence


A trade representative had an employment contract of indefinite duration, which included a non-compete clause. The trade representative terminated the employment contract with notice period and, in that context, sent an e-mail that he was leaving the employer and how he could be contacted after his departure. Thereafter, the trade representative joined a competing company, carrying out identical activities and also located in the same region as the ex-employer.

After the former employer learned of this, it informed the trade representative that he was in default for the breach of the non-compete clause and demanded the payment of the lump-sum compensation linked to it to his former employer. In addition, the new employer is also served with a notice of default for third-party complicity in another’s breach of the contractual non-competition obligation.

As neither the trade representative nor the new employer complied to this formal notice, the former employer brought the case before the tribunal. The tribunal had to rule on the following two discussions: the breach of the non-compete clause and its consequences and the third-party complicity in breach of contract and proof of damages.

Breach of non-compete clause and consequences

The tribunal noted that it was clear that the trade representative had breached the non-compete clause and therefore owed a lump-sum compensation to his ex-employer. However, the trade representative cannot be ordered to pay additional damages for the actual damages allegedly suffered by the ex-employer due to the breach of the non-compete clause.

Finally, the tribunal confirmed that the trade representative could be ordered to pay the lump-sum compensation in solidum with its new employer. Indeed, there is an extra-contractual fault on the part of the new employer (the complicity to breach the non-compete clause) that is causally related to the damage caused to the ex-employer.

Third-party complicity in breach of contract and (illegally obtained) proof of damages

The tribunal upheld that there was third-party complicity in the breach of contract by the new employer. The new employer's argument that it was unaware of the non-compete clause at the time of hiring was not accepted and, according to the tribunal, shows bad faith, at least culpable levity on the part of the new employer. During the job interviews or at least upon commencement of employment, the new employer knew (or should have known) that its new employee had held the same position with a direct competitor. The new employer should thus have inquired of its candidate employee about the existence of any non-compete clause.

The tribunal further examines the claim for compensation for the actual damages allegedly suffered by the ex-employer due to its complicity in the breach of the non-compete clause. As proof of its damages, the ex-employer submits a number of e-mails that were accidentally sent by customers to the trade representative’s old professional e-mail address. The trade representative believes that these e-mails should be excluded from the debates, as they were obtained in violation of his privacy and data protection rights. It is undisputed that the trade representative’s professional e-mail address was not deactivated after the termination of his employment and continued to be accessed by the ex-employer for 13 months. According to the tribunal, the ex-employer should have deleted the trade representative’s professional e-mail address at the time of termination of his employment. Consequently, the e-mails submitted constituted irregularly obtained evidence.

The tribunal further tested whether the irregularly obtained evidence could still be accepted as proof of damages. After all, the ex-employer could establish from these e-mails that customers also placed orders with his competitors, and this through the intervention of its ex-employee. In this respect, the court refers to the case-law of the Court of Cassation, which accepts irregular evidence if the irregularity does not affect the reliability and does not infringe the right to a fair trial. However, consideration must still be given to how the evidence was obtained, the circumstances in which the irregularity was committed and its seriousness, the extent to which it violates the rights of the opposing party, the need for evidence and the attitude of the opposing party. The tribunal finds that the parties did not question the reliability of the evidence, thus respecting the right to a fair trial. The ex-employer obtained the evidence in a passive manner. He did not use fraudulent procedures or manoeuvres to access the trade representative’s mailbox. Thus, the irregularly obtained e-mails should not be excluded from the debates.

Nevertheless, the tribunal decided that the ex-employer cannot prove damages consisting in a loss of clientele or a decrease in turnover. The evidence presented only shows that the trade representative had contact with its customers. Indeed, the loss of clientele or decline in turnover may be due to other causes: lower activity due to the pandemic, lack of recruitment of a new trade representative and unpredictable customers. Rather, it is a loss of an opportunity that constitutes an irrecoverable loss. The claim for compensation for actual damages is therefore rejected by the tribunal.

Key messages 

1. During the application process, it is important to check whether the applicant is bound by a non-compete clause. If the non-compete clause is breached, the new employer may be found complicit. and may also be ordered in solidum with its new employee to pay a compensation.
2. Although this judgment accepted the irregularly obtained e-mails from an ex-employee’s mailbox as evidence, some caution is needed. Indeed, this case takes into account the specific circumstances as well as the conditions in the case law related to the acceptance of irregularly obtained evidence. Moreover, this does not take away from the tribunal’s effective finding that the evidence was obtained in violation of the provisions of the GDPR. It is important to follow the GBA’s guidance on mailboxes closure on termination of employment (see our newsflash of 20 December 2021). Unlike the tribunal, the GBA accepts that the mailbox does not have to be deleted immediately on the employee’s departure, but may be retained for 1 to 3 months to send an out-of-office message.