Duty of fidelity
In accordance with his duty of fidelity, the employee is obliged to safeguard the legitimate interests of his employer in all circumstances. The employee is, in principle, bound by his duty of loyalty only during working hours. However, throughout the duration of the contract, the employee must not perform paid work for a third party insofar as this violates his duty of loyalty and, in particular, competes with the employer.
Managers are subject to a greater duty of loyalty. Engaging in a competing activity is a particularly serious breach, which may lead to dismissal with immediate effect in certain cases.
To make ends meet, some employees find themselves obliged to pursue a second gainful activity in parallel with their main activity. By virtue of their duty of loyalty, they may under no circumstances engage in an activity that competes with their employer, even at a low rate.
Determining whether or not there is a competing activity is not always easy. Can a watchmaker employed in a luxury watch factory repair watches in his spare time? Can a jewellery polisher work as a mechanic in a garage?
When an employee is unable to work, he is still bound by his duty of loyalty. He must do everything possible to recover as quickly as possible.
An employee who carries out an activity, whether lucrative or free of charge, for a third party during this period violates his duty of loyalty. Such a breach is all the more serious if the activity is in competition with the employer.
During unpaid leave, the obligations of the employment contract are in principle suspended. However, the employee is still bound by the duty of loyalty and may not engage in all the activities he or she wishes if they violate his or her obligations.
The purpose of holidays is for the employee to rest and regain strength. While the employee is in principle free to choose his or her activities, these are limited by the prohibition on competing with the employer.
Following dismissal, an executive is released from his obligation to work during the leave period. They may wish to use this time to set up a business in competition with their employer or to start a new activity.
They are still bound by their duty of loyalty and may not engage in any competing activity during the leave period, even if they are released. Does the provision of information or the entry in the commercial register already constitute a competing activity? The answer to this question is of great consequence, as it may lead to immediate dismissal for just cause.
If the employee engages in an activity that competes with his employer, his economic interests may be directly jeopardised. This may constitute gross misconduct. The employer may take measures against the employee, including immediate dismissal. The severity of the sanction will depend on the circumstances.