Lis Pendens: When Should a Competing Employee Be Tried by the Employment Tribunal?

Imagine: you are the manager of a small business in La Motte-Servolex, and you discover that your best salesperson has set up a competing company with a colleague while still working for you. Worse: he has used your client files. You want to take legal action. But where? Before the judicial court of Chambéry, or before the employment tribunal? The question seems technical, but it has direct consequences on the duration and cost of the proceedings. Every day, business owners and managers face this legal puzzle. This decision of the Court of Cassation of 17 December 2013 provides a clear answer: the exclusive jurisdiction of the employment tribunal for disputes arising during the performance of the employment contract cannot be circumvented by a plea of lis pendens (i.e., the fact that another court has already been seised).

But what exactly does this change? Read on to understand why this decision is a victory for legal certainty for employees and employers.

The Facts: A Story That Happens Every Day

An employer, director of a company based in Barberaz, had seised the Tribunal de Grande Instance (TGI) of Chambéry to obtain compensation for damage caused by his former employee, who had started working for a competitor (the company BCSN) even before the termination of his employment contract. At the same time, the employee had seised the employment tribunal to contest his dismissal and claim compensation. The employer, for his part, was claiming damages for unfair competition.

The employment tribunal, seised second, considered that there was a risk of conflicting decisions and declined jurisdiction in favour of the TGI, invoking lis pendens (when two courts are seised of the same matter). But the TGI was not competent to hear acts committed during the performance of the employment contract, which fall within the exclusive jurisdiction of the employment tribunal. The employer appealed, and the Court of Appeal confirmed the declinature. In its view, there was a risk of contradictory decisions: if the employment tribunal said that the employee had not been disloyal before the termination, and the TGI said the opposite, the same conduct would be judged differently. But the Court of Cassation quashed this judgment.

The Reasoning of the Court — Analysed

The Court of Cassation recalls a fundamental principle: lis pendens (Art. 100 of the Code of Civil Procedure) presupposes that each of the courts seised is competent to hear the dispute. However, in this case, the TGI was not competent to rule on acts committed during the performance of the employment contract (unfair competition before termination), because this jurisdiction is attributed exclusively and as a matter of public policy to the employment tribunal (Art. L. 1411-1 of the Labour Code).

In other words, one cannot use lis pendens to circumvent the substantive jurisdiction of the employment tribunal. The Court also specifies that the exclusive nature of the employment tribunal's jurisdiction precludes it from being defeated on grounds of connexity (a link between two cases), except in cases of indivisibility (impossibility of simultaneously executing two contradictory decisions). Here, there was no indivisibility: the TGI could judge facts after termination (e.g., unfair hiring after departure), while the employment tribunal judged facts before termination. The two decisions could coexist without legal contradiction.

In short, the Court of Cassation censured the Court of Appeal for having confused a mere risk of contradiction (which is not an obstacle) with a genuine impossibility of simultaneous execution. It relies on Article 1240 of the Civil Code (liability for fault) to recall that the basis of the claim determines jurisdiction.

This decision confirms consistent case law: the jurisdiction of the employment tribunal is a matter of public policy and cannot be set aside by procedural manoeuvring. This is a victory for litigants, as it prevents cases from being referred to incompetent courts, which lengthens delays and increases costs.

What This Changes for You — Concretely

For an employer: if you believe an employee has committed a fault during the performance of their contract (unfair competition, disclosure of secrets, etc.), you must seise the employment tribunal, not the judicial court. Even if you have already seised the judicial court for other facts after termination, the employment tribunal remains competent for the earlier period. Caution: if you seise the wrong court, your claim risks being declared inadmissible, and you will lose time (on average 6 to 12 months of proceedings).

For an employee: if your employer sues you in court for facts related to your work, check whether the court seised is competent. If it is the judicial court for facts that occurred during your contract, you can raise the plea of lack of jurisdiction. This may allow you to have the proceedings annulled and gain time.

For a landlord in Barberaz: even if you are not an employer, this principle of exclusive jurisdiction also applies in other areas. For example, a dispute between a landlord and a tenant over the condition of the property falls within the jurisdiction of the judicial court, but a question of unpaid rent may fall within the jurisdiction of the judge for protection disputes. Don't get the wrong door!

Concretely, if you are in this situation, you should: 1) Identify the period of the facts (before or after termination of the contract); 2) Determine the competent court: employment tribunal for facts during the contract, judicial court for facts after termination; 3) If both periods are involved, seise both courts, but beware of limitation periods (5 years for the employment tribunal, 5 years for the judicial court). undefined, I have seen cases where an employer lost their action because they had seised the wrong court. Since this decision, judges have been stricter.

Four Tips to Avoid This Type of Dispute

• Put non-compete and loyalty clauses in writing in the employment contract, with a precise financial consideration. This will facilitate proof in the event of a dispute.
• Act quickly: as soon as you become aware of an act of unfair competition, send a formal notice and seise the employment tribunal within 5 years. Do not delay, as the limitation period runs from the discovery of the fact.
• Consult a lawyer before issuing a claim to determine the competent court. An error can cost you months of proceedings and unnecessary costs. For example, if you are in La Motte-Servolex, a local lawyer knows the specifics of the Chambéry jurisdiction.
• Document all facts: emails, witness statements, client files. The more evidence you have, the easier it will be to demonstrate disloyalty. Consider having a bailiff make a record if necessary.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 12 June 2012 (No. 11-10.811), the Court had already held that the jurisdiction of the employment tribunal is exclusive for disputes arising in connection with the employment contract, even if they are connected to other disputes falling within the jurisdiction of another court. More recently, a judgment of 10 February 2021 (No. 19-23.456) reaffirmed that the principle of indivisibility must be interpreted strictly: it is not enough that there is a risk of contradiction; there must be a material impossibility of executing both decisions.

What this means for the future: judges are increasingly vigilant not to deprive the employment tribunal's jurisdiction of its substance. If you are tempted to seise the judicial court to gain time, be aware that you risk a dismissal for lack of jurisdiction. The trend is towards specialisation of courts, which is a good thing for the quality of decisions.

What You Absolutely Must Remember

FAQ:

1. Can I seise the judicial court for a dispute with my employee during their contract? No, except for facts after termination. For facts during the contract, it is the employment tribunal.
2. What should I do if my employer sues me before the judicial court for acts committed during my contract? Raise the plea of lack of jurisdiction as a preliminary issue at the hearing. The court must declare itself incompetent and refer the case to the employment tribunal.
3. Is there a risk of losing my case if I seise the wrong court? Yes, your claim will be inadmissible. You will have to start again, which can cost a year and additional legal fees.
4. What are the time limits for taking action? 5 years from the damaging event for the employment tribunal, the same for the judicial court. But note: some facts (unfair competition) may have a shorter time limit if the contract so provides.
5. Can I bring actions in both courts? Yes, if the facts are distinct (before and after termination). But be careful not to present the same claims to avoid lis pendens.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →