The Workers' Statute (E.T.) does not expressly regulate acts of unfair competition, although it indirectly regulates the prohibition of such acts during the employment contract through the provision of Article 5 of the E.T., which considers it is a basic labor duty to "not compete with the activity of the company".
It has to be added the generic provision of Article 21.1 of the E.T., which establishes that an employee shall not perform an activity when it is considered unfair competition (even when the E.T. does not give an express definition). Or, even also in the case where an exclusivity agreement has been agreed between the parties (i.e. the agreement to only work for the same employer, although this requires an agreement with express financial compensation, which is not usually the case).
Therefore, and in order to find out which are “the acts of unfair competition”, it is necessary to refer to civil law, in particular Law 3/1991 on Unfair Competition and Law 1/2019 on Business Secrets.
In principle, there is no closed list of acts of unfair competition, although one of the most common is the breach of confidentiality of trade secrets, the definition of which is regulated in Article 3 of Law 1/2019 on Trade Secrets as “the use or disclosure of a trade secret which is considered unlawful” when, without the consent of the owner, is carried out by a person who has obtained the trade secret unlawfully, by a person who has breached a confidentiality agreement or any other obligation not to disclose the trade secret, or by a person who has breached a contractual or other obligation limiting the use of the trade secret.
Thus, for example, it is common to have unlawfully obtained information of clients and prices of services, etc. during the employment relationship, and then to use this information to commit acts of unfair competition.
Apart from that, Law 1/2019 on unfair competition, which regulates the matter in a broad sense, specifies some of the usual acts committed by employees against their former companies, such as inducing contractual infringement or trying to get the company's employees to leave the company and move to the new concurrent employer where the former employees now work (Art. 14).
Secondly, it is important to determine which jurisdiction can be used to claim damages for acts of unfair competition committed by the company's employees, which is a crucial question that case law has been resolving in some cases, and from which we can extract some general lines that we summarize below:
1. Jurisdiction of the Social Court
The Social Division of the Supreme Court has declared the labor courts competent to claim damages for unfair competition (e.g. breach of the obligation of confidentiality) in judgments of 4 May 2017 and 1 October 2019, in cases where it was proven that during and "in force during the employment relationship" the now former employees committed proven breaches of unfair competition (we note that in this case it is crucial to verify the proof of such acts, and that such proof is valid and admitted by a Court), on the basis of the existence of a conflict arising from the employment contract itself, and the existence of a conflict of interest between the former employees and the former employees, and the existence of a conflict of interest arising from the employment contract itself.
2. Jurisdiction of the Civil Jurisdiction
This will generally be the competent jurisdiction in accordance with the provisions of the aforementioned regulations (Law 1/2019 on Business Secrecy, and its article 14 relating to the jurisdiction of the Commercial Courts; and Law 3/1999, on Unfair Competition in accordance with article 32 and following of said regulation) in common situations where the claim is against another company for acts of unfair competition, to which the claim against the former employees in question can be added, where there is proof of their involvement in said acts of unfair competition.
For all these reasons, the Employment Law Department of BELZUZ ABOGADOS, S.L.P., as lawyers specialized in labor law, and procedural practice in unfair competition proceedings, we consider of essential interest the prior knowledge of the matter and assessment of possible existing evidence, in order to determine in the first place which type of jurisdiction should be used, and for this it is essential to review whether the existing evidence shows that the acts were committed during the employment relationship or afterwards, as there are clear differences in procedural agility and costs regime if the civil or labor proceedings are used, and therefore, we recommend the necessary prior legal advice as we do daily in our office.
Belzuz Abogados SLP
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