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Germany : Headhunting : poaching employees at their workplace and the legal risks for the recruiting employer

Swen Schöne
30/03/2012

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Germany

Germany : Headhunting : poaching employees at their workplace and the legal risks for the recruiting employer

International Employment Bulletin contents

 

The shortage of skilled workers in the German labour market has encouraged many employers to use professional 'headhunters' to recruit potential top executives. This article provides a general overview of the legal framework, the legal boundaries and the legal risks for the recruiting employerin relation to headhunting in the German workplace.

As a general guideline, under German law, headhunters or in-house recruiters are allowed to poach employees as this is considered an integral part of free competition.

However, poaching employees will cross the line of good business standards and violate Sec. 3, Sec. 4 and/or Sec. 7 German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb – UWG) if it entails or pursues 'unfair practices'.

In such circumstances, the recruiting employer, as the headhunter's principal, will be exposed to claims for damages by the current employer (such as lost profits or own recruitment costs) and also to claims for injunctive relief (which may include an employment ban if the employee joins the recruiting employer and the employment itself would also be considered an unfair practice). 

Establishing 'unfair practices' requires an overall assessment of the individual circumstances and a balance of interests between the headhunter, the employee and the employers on a case-by-case-basis.

It is commonly accepted that it is anti-competitive for headhunters to make personal visits to the current employer's business premises to ascertain whether an employee is willing to change his job (Federal Court of Justice, 13 December 2007 – I ZR 137/07). Therefore, under no circumstances should the recruiting employer instruct headhunters to visit employees at their offices.

In relation to telephone calls at work, the Federal Court of Justice (BGH) has established and confirmed the following guidelines in the past few years:

  • A headhunter is permitted under German law to make initial contact via telephone if he:

(i) briefly introduces himself at the beginning of the call;

(ii) explains the purpose of the call; and

(iii) confirms with the employee that he/she is actually interested in the contact.

  • If the above requirements are fulfilled, the head-hunter may continue the call and:

(iv) briefly describe the position; and

(v) (provided that the employee is still interested) agree to make further contact with the employee outside the employee's workplace.

Any call which goes beyond these requirements will be considered anti-competitive i.e. illegal under German law, which also means that the recruiting employer should instruct the headhunter not to provide the employee with (detailed) information about the employee's professional career (such as CV-details) in the initial call at work.

Moreover, it should be noted that any call (made either to the employee's landline at work or to the employee's business mobile phone) which exceeds a 'few minutes' may constitute evidence that the call is anti-competitive.

On the other hand, calls made by the headhunter to the employee's private mobile phone (also during work time) are less critical as they do not directly affect the current employer and his business.

The legality of headhunting via business e-mail has not yet been decided by the German courts. Legal opinions on this area are also virtually non-existent.

In our view, headhunting via business e-mail is generally not admissible because business e-mail is clearly aimed at the employer's organisation (whereas it is arguable that telephone calls are targeted at the individual employee and justified by the employee's 'presumed consent').

In any event, the headhunter should avoid sending a business e-mail together with a link to information about the relevant position. This might lead to the employee researching the position (and the headhunter) and thereby disrupt the employer's business (the current employer can use the e-mail as evidence in court proceedings).

Dispite the common view that e-mail is less intrusive than a telephone call, employers should therefore request that headhunters refrain from any contact via business e-mail until the legal situation concerning business e-mails has been clarified by the German courts.

Privatee-mail or messages via social networks, however, do not give rise to considerable legal risks for the recruiting employer and the headhunter because they do not affect the employer's IT system.

However, in exceptional cases  they may trigger claims for damages and/or injunctive relief by the employee on the basis of the violation of the employee's right of personality (allgemeines Persönlichkeitsrecht) if the employee rejects the contact but the headhunter continues to contact the employee.

In any case, it would be advisable for employers to (i) educate their in-house recruiters and to (ii) ensure that headhunters adhere to the above guidelines to prevent claims for damages and/or injunctive relief.

Contribution by Swen Schöne Fieldfisher Deutschland LLP (Hamburg), Employment and Benefits Group

 

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