Understanding post-employment restrictions in your Dutch employment contract
Post-contractual clauses, such as a non-competition or non-solicitation clause, are regularly included in employment contracts. A post-contractual clause, unlike the other terms in the employment contract, still applies after its termination. It is important to understand what is contained in these clauses before signing the employment contract and before you leave your employer. Especially since the clauses are often combined with a penalty clause. This article provides an explanation of a number of post-contractual clauses.
The non compete- and relationship clause
A non-compete clause restricts an employee from joining a competitor for a specified period after their employment ends. Similarly, a non-solicitation clause prevents an employee from engaging with business relations of their former employer.
Typically, these clauses include a temporal scope (e.g., 1 year) and a geographic scope (e.g., within the Netherlands). However, even without these specific scopes, such clauses remain valid if they are agreed upon in writing and the employee was at least eighteen years old at the time of signing. For fixed-term contracts, an additional requirement is that the clause must explicitly state why it is necessary due to significant business interests.
If you find yourself bound by such a clause after your employment ends and you disagree with it, you have the option to request the court to (partly) waive the clause. The judge will then balance the employer’s interest in protecting its business against the employee’s interest in having the clause waived.
The poaching clause
A poaching clause prevents an employee, for a certain period after leaving their job, from approaching former colleagues to recruit them for a position with their new employer or their own business. Unlike non-compete and non-solicitation clauses, there is no specific legal provision for anti-recruitment clauses. Therefore, there are no statutory conditions for their validity.
However, case law indicates that an anti-recruitment clause can, in some case, be legally treated as a non-compete clause. This classification depends on circumstances of the situation. It depends on the nature of the activities the employee undertakes with their new employer and the restrictions imposed by the clause.
The ancillary activities clause
Many employment contracts include an ancillary activities clause. According to the law, an employer can only prohibit ancillary activities if there is an objective justification. This justification does not need to be included in the employment contract in advance; it can also be provided at the time the employer invokes the clause. Objective grounds may include the protection of confidentiality and company information, ensuring the health and safety of the employee, and compliance with legal regulations (such as the Working Hours Act).
If there is no objective justification or the employer cannot provide sufficient justification, the employee should not be prevented from engaging in activities outside working hours. Please note that employees are expected to report their ancillary activities to their employer.
Confidentiality clause
Most employment contracts include a confidentiality clause, which typically applies indefinitely beyond the termination date. This clause is an effective means of protecting an employer’s trade secrets. It is important to carefully review the scope of the confidentiality clause both before and after the end of your employment contract.
More information
If you have questions about any of these clauses or employment law, please feel free to contact us.
