Employee and employer litigated in the first instance and subsequently on appeal regarding the balancing of interests that should be made in the context of whether or not a non-competition clause should be upheld. The Court of Appeal ultimately ruled that the balancing of interests was in the employee's favour and that upholding the clause would unfairly disadvantage the employee. Curious about the facts and the balancing act?

Employee joined AP Support on 1 January 2017, where he embarked on a two-year training programme to become a claims consultant. The employment contract contains a non-competition clause. From 1 January 2020, the employee started working at Rochewood Insurance & Banking B.V. Rochewood is a direct competitor of AP Support. The subdistrict court ruled that the non-competition clause puts the employee at an unfair disadvantage in relation to AP Support's interest in enforcing it, on the basis of which the subdistrict court nullified the non-competition clause. AP Support claimed that the Court of Appeal should set aside the judgment of the subdistrict court.

The reason for the non-competition clause in the employment contract is that without it, AP Support would be disadvantaged because of the specific knowledge and expertise that the employee acquires about its network and its working method. By mentioning these interests, (precisely) those of AP Support come to the fore in considering whether the employee would be unfairly disadvantaged by the non-competition clause. The interests that AP Support invokes in this case - investment in the training of employee and precedent setting - were known to it when it concluded the non-competition agreement. Nevertheless, these interests were not included in the grounds for the non-competition clause in the employment contract as interests of AP Support to be protected. In the opinion of the Court of Appeal, this does not mean, as the Subdistrict Court held, that these interests no longer play any role in the weighing of interests. However, the court of appeal is of the opinion that these interests carry less weight in the weighing of interests.

The court of appeal has established that AP Support's interest in recouping the investment in the training of the employee is already (partly) protected by the study costs arrangement agreed between the employee and AP Support, so that the non-competition clause need offer no, or only limited, protection against this.

With respect to the precedent set by AP Support, the court considered that the employer may agree to a non-competition clause to protect the employer's business assets - the accumulated know-how and goodwill. But the non-competition clause may not serve to bind employees. The mere fact that an employee has gained knowledge and experience in the performance of his duties does not mean that the employer's business assets are affected when that employee leaves, or when that employee leaves for a competitor. AP Support has not stated any facts to show that its flow has been affected in any other way by the transfer. Although the employee immediately started working for a client of AP Support, the non-competition clause is not intended to protect AP Support's business model. AP Support's interest in preventing precedent from being set is not an element that directly affects AP Support's business.

All of this means that the balance of interests is in favour of the employee, in the sense that upholding the non-competition clause would unfairly disadvantage the employee. You can read the full judgment here.

If you have any questions about this judgment, or if you have any other questions about (for example) a non-competition or non-solicitation clause, please do not hesitate to contact one of the employment lawyers at SPEE advocaten & mediation.