Former Employees Had Not Acted Unlawfully by Continuing Client Assignments

In a judgment dated April 10, 2026, the Danish Maritime and Commercial High Court ruled on whether several former employees of a consulting firm had acted unlawfully by planning to leave the company and subsequently contacting clients with a view to having them continue assignments with their own newly established company. The Court found no basis for concluding that the employees had acted unlawfully, and the summary dismissal of two of the employees was also held to be unjustified. Their former employers initiated legal action against the former employees and their newly established company.

The case concerned several former employees of a consulting firm who had worked with, among other things, construction management and client advisory services on a number of major construction projects. After their departure, the employees continued several of the assignments through their newly established company. 

During the proceedings, the employer argued that the employees had planned their joint departure with the view to taking over clients and projects from the company. It was argued, among other things, that the former employees had acted in breach of their duty of loyalty under employment law, the Danish Marketing Practices Act, and the Danish Trade Secrets Act by contacting the company’s clients and continuing the assignments in a competing setup.

Two of the employees were also summarily dismissed as a result of these circumstances, and the employer sought both an injunction prohibiting continuation of the assignments and payment of substantial damages.

The Clients wished to continue with the same advisors 

The Danish Maritime and Commercial High Court found that it had not been proven that the clients’ change of provider was the result of the employees unlawfully encouraging the clients to withdraw the assignments from the consulting firm and transfer them to their newly established company. The Court placed emphasis, among other things, on the fact that the projects in question were complex construction projects, where the clients themselves attached great importance to being able to continue working with the same specific advisor. Several clients testified during the proceedings that they had first made contact and taken the initiative to continue to work with the relevant advisors after their departure from the consulting firm.

The Danish Maritime and Commercial High Court also found that it had not been proven that, in connection with the clients’ change of provider, the former employees had otherwise unlawfully acquired or used information about the clients or assignments that they had become aware of through their employment with the consulting firm.

In addition, the Court placed emphasis on the fact that none of the employees were subject to non-solicitation or non-competition clauses.

However, the Court noted that there could be some doubt as to when the plans to establish their own company had actually taken shape, including because there was information about discussions concerning the establishment of the new business several months before the employees’ departure. Nevertheless, the Court found that this doubt could not in itself lead to a different assessment, as insufficient evidence had been presented to show that the employees had actively contacted clients with a view to getting them to change providers.

On that basis, the employer’s claims for an injunction and damages were not upheld.

The Summary Dismissals Were Unjustified 

With respect to the consulting firm’s summary dismissal of two of the employees, the Danish Maritime and Commercial High Court found that the dismissals had been unjustified. The Court relied, among other things, on the circumstances that were also considered relevant in assessing whether the former employees had acted unlawfully in connection with the continuation of client assignments. As regards one of the summarily dismissed employees, the Court placed particular emphasis on the fact that the employer had cited, as a material reason for the summary dismissal, that the employee had attempted to take clients with him, while at the same time the employer had itself participated in a number of discussions concerning proposals as to how the employee could continue to be affiliated with one of the projects following his departure.

The Court therefore found that there was no sufficient basis for the summary dismissals. The employer was therefore required to pay the employees the salary they were owed for the remainder of their notice periods.

Littler Comments 

During employment, employees are subject to a duty of loyalty toward their employer, which means, among other things, that they may not start a competing business or otherwise act disloyally.

When the employment relationship ends, the employee is no longer subject to a duty of loyalty under employment law. After employment has ended, however, the former employee may still be restricted in their ability to operate a competing business against their former employer by a non-solicitation or non-compete clause.

In addition to such potential clauses, former employees are in any event subject to the prohibitions under the Danish Trade Secrets Act and the Danish Marketing Practices Act against (mis)using, for example, client information that the former employee became aware of during their employment.

The Danish Maritime and Commercial High Court’s ruling demonstrates that, in assessing the lawfulness of former employees’ conduct, significant weight may be given to whether the clients themselves initiated and maintained a working relationship with the employees in their new company.

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Disclaimer: The above is not, and cannot replace, legal advice.