While it may seem counterintuitive, it is precisely at the moment of hiring that risks related to a future departure should be anticipated. Sound risk management requires appropriate clauses in employment or consultancy contracts and/or the work regulations, as well as suitable company policies.
The departure of certain employees can pose a major risk to the business whether it's a manager poached by a competitor who holds trade secrets, has access to client lists, and plans to recruit other staff or clients, or a dismissal triggered by an employee's misconduct. To protect itself, a company must anticipate from the moment of onboarding, manage the departure strategically (offboarding), and, where necessary, take additional appropriate measures after the fact.
Onboarding: laying the groundwork from day one
The contract, the foundation of the employment relationship
Employees are legally required to refrain, both during and after their contract, from disclosing trade secrets or any other confidential information, and from engaging in acts of unfair competition. During the contract, any competitive activity will be considered disloyal. As for the self-employed worker, apart from unfair competition, they are in principle free to carry out competing activities.
For both employees and self-employed workers, the contract may include clauses reinforcing certain prohibitions or obligations though for employees, such clauses are subject to strict conditions of validity.
Before each hire, it is therefore advisable to consider the (potential) requalification of the relationship based on the actual collaboration (particularly in commercial agency arrangements), and whether to include certain clauses in the contract, such as:
- Non-compete;
- Confidentiality;
- Non-solicitation;
- Intellectual property rights;
- Return of company property;
- Etc.
The work regulations: the heart of the disciplinary procedure
With regard to employees, the work regulations are a key risk management tool, as they establish employee rights and obligations and specify applicable disciplinary sanctions.
Company policies: tools that have become indispensable
Whether arising from legal requirements or business needs, internal policies have become an essential safeguard. These include notably:
- A code of conduct;
- A data protection policy defining rules for handling confidential information;
- An IT/ICT policy governing the use and return of company equipment;
- A policy on the use of surveillance cameras;
- Internal regulations on private investigations, the rules for which have recently been amended and tightened.
Offboarding: managing the departure, suspicions, and crises
When a departure becomes a reality, a legal, organisational, and communication-based approach must be combined.
Where suspicion arises (e.g. diversion of clients or staff, data theft, breach of a non-compete clause), a delicate exercise must be undertaken: assessing the evidentiary value of indications of misconduct, the legal soundness of the steps to be taken, the profile of the departing employee, their likely reaction, and the commercial impact on the business (particularly in cases of unfair competition).
Gathering evidence will be a major challenge, and will be heavily influenced by the contractual documents put in place upstream:
- Is camera footage available, and can it be used?
- Can the employee's mailbox be accessed and their emails reviewed?
- Can private investigators be engaged?
- Can certain information be withheld from the employee?
- Can third parties (e.g. existing or potential clients) be freely informed about the alleged illegality of a departure or the person's conduct?
All of these questions must be carefully analysed. In a crisis situation, if suspicions are confirmed, legal action may be considered, generally preceded by one or more formal notices: injunction proceedings, seizure for infringement, criminal complaint, complaint to the data protection authority, etc.
Conclusion: anticipate, balance, and document
Protecting the business when key individuals leave rests on a comprehensive strategy:
- Anticipate from onboarding through tailored and up-to-date contracts and policies;
- Manage offboarding by combining a structured investigation, compliance with data protection rules, and controlled communication in line with fair market practices;
- Choose wisely between internal measures and legal action.
In practice, this means "beginning with the end in mind": thinking about departure risks from the moment of hiring, rigorously documenting facts and decisions, weighing the commercial impact of each option, and making targeted use of the contractual and legal tools available.
By Ambre Vranckx, Sacha Henet, and Gilles Vandewiele, Eubelius
You may also be interested in this seminar: When a manager or employee leaves: anticipating risks and safeguarding the business
