Création par un salarié d’une société concurrente de son employeur pendant le préavis

Un salarié démissionne. Le même jour, l’employeur lui notifie une rupture de préavis pour faute lourde. Pendant ce préavis, le salarié crée une société concurrente de son ancien employeur. Suite à une décision du Conseil de Prud’hommes saisi en première instance, la Cour d’appel condamne l’employeur à payer au salarié des sommes à titre d’indemnité compensatrice de préavis et de congés payés afférents.

L’employeur estimant que « manque gravement à son obligation de loyauté le salarié qui, étant au service de son employeur et sans l’en informer, crée une société dont l’activité est directement concurrente de la sienne, peu important que des actes de concurrence déloyale ou de détournement de clientèle soient ou non établis », la Cour d’appel aurait dû ne pas le condamner.

La Cour de cassation, saisie du pourvoi formé par l’employeur donne raison à la Cour d’appel. Elle estime en effet que « La cour d’appel, qui a constaté que si la société constituée par le salarié avait été immatriculée pendant le cours du préavis, son exploitation n’avait débuté que postérieurement à la rupture de celui-ci, alors que le salarié n’était plus tenu d’aucune obligation envers son ancien employeur, en a exactement déduit qu’aucun manquement à l’obligation de loyauté n’était caractérisé. » (Soc. 23 sept. 2020, n° 19-15.313)

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