An employer in the food sector takes on an employee who until recently was working for a competitor. The employer in question had previously employed former employees of the competitor and knew that the question of whether the employees were thereby acting in conflict with a non-competition clause was under discussion. The previous employer then called the employee to account in relation to the non-competition clause and demanded payment of penalty fines. The previous employer also announced compensation claims against the em-ployee and her current employer.
As a result, the current employer then decided to suspend the employee as of 8th September 2009 and request dissolution of the employment agreement from the sub-district court judge. Dissolution took place on 1st November. However, the employer refused to pay the salary for the period 8th September 2009 to 1st November 2009, arguing that the non-performance of the agreed work activities lies within the sphere of risk of the employee. The employee dis-puted this. She argued that during the recruitment phase, when asked she informed the em-ployer that a non-competition clause applied and that the employer did not ask any further questions in that regard so that the employer knowingly accepted the risk that the previous employer would call the employee to account in relation to the non-competition clause.
On the basis of a contradiction in the defence of the employer, the sub-district court judge deems it plausible that the non-competition clause was indeed discussed during the recruit-ment phase and on that basis is of the opinion that the cause of the non-performance of the work is attributable to the employer. But even if that were not the case, according to the judge the employer must continue to pay the employee’s salary because the non-performance of work as a result of his suspension is, according to the jurisprudence of the Supreme Court, by definition for the account and risk of the employer.