Prior to Termination of his Employment, the Employee sent Contact List to his Private Email Address

An employee who, shortly before termination of his employment, had forwarded a list of customer data to his private email address and from there to the company email address with his new employer, could not be sued for violation of the confidentiality clause. A claim to impose the employee a restraining order on these persons was rejected as well.
An employee of a technical secondment company had left the employment.
He also had a function at the company's subsidiary, which also dealt with secondment of employees in technical positions, be it that the employee had no employment contract with this subsidiary. After termination of the employment contract, the employee started working at a company which was not a competitor of his former employer. In the month preceding his departure, the employee had sent a list of customer names and information about these customers to his private email address. After the employer had ordered the seize of the employee's computer data, it became clear that the employee had subsequently forwarded the customer data to the company email address with his new employer. After one year in the service of his new employer, the employee resigned in order to join a company that, indeed, was a competitor of his original employer.
The employer claimed that the employee had violated the confidentiality clause in the employment contract by first forwarding the customer data to his private email address and then to the company email address with his new employer. For that reason, the employer applied to the Sub-district Court for the fine of € 40,000, stipulated in the employment contract for violation of the confidentiality clause. The Sub-district Court rejected this claim, however. According to the Sub-district Court, the confidentiality clause had not been violated by sending customer data to email addresses that belonged to the employee. There was no evidence that the data had also been shared with a third party. Moreover, no confidentiality obligation had even been agreed with the subsidiary.
The Sub-district Court also rejected the employer's claim to order the employee to pay damages -the amount of which was to be determined in separate proceedings- since the employer had not addressed that any damage was suffered.
The employer had also claimed that the employee should be ordered to restrain from contacting any people on the list. The employer considered this prohibition necessary to prevent any damage resulting from or associated with default or wrongful acts.
The Sub-district Court also rejected this prohibition because it would correspond with a relationship clause, whereas no relationship clause had been agreed with the employee. The employer had failed to substantiate that the employee unlawfully competed with the employer now by contacting customers on the list. Moreover, according to the Sub-district Court, in the meantime the customer data had become too far outdated to justify a restraining order.

The Sub-district Court's verdict shows how difficult it can be to protect confidential company information. In the above case, the employer could have done more to improve it, for example, by agreeing on a relationship clause and by also arranging the relationship with the subsidiary in writing. Nevertheless, it leaves a sour taste in the mouth that the employer failed to obtain legal protection against the abuse of customer information. The Sub-district Court’s judgment did not say so, but it looks like the employee had a non-competition clause which exclusively prohibited him from working in the area of technical secondment for a year, that he had joined another employer just to bridge this period and that, from the start, it had been his intention to work in technical secondment again and to use the customer information of his original employer. In that case, it could be regarded as bad intentions.
Strictly speaking, however, it is correct that sending the information to the employee's private email address does not constitute a violation of the confidentiality clause. As for the forwarding of the information to the company email address with the new employer, it might be argued whether this is a violation of the confidentiality clause, since the customer information lands on the server of another company.
In any case, the employee has been in default, because customer information vests in the employer and, of course, the employee had no right to appropriate it. In light of the threat of default or wrongful acts, a temporary prohibition can be imposed to prevent damage. In the above case, this would, indeed, have corresponded to a non-solicitation clause. The Sub-district Court considered this a bit excessive for as long as there was no evidence of unlawful competition, but, in principle, only the default in itself, caused by sending customer information to the private e-mail address and by later forwarding it the company e-mail address with the new employer, could have been a ground for imposing a restraining order.
The employer might still ask for such an order once it turns out that customers switch to the employee's current employer, although the employer would still have to demonstrate then that the employee played a role in it. The more customers make the switch, the more plausible this will become. In that respect, the employee is forewarned and should think twice before using the customer information.