Facts
The employee and the employer agreed on a non-competition clause. The employee resigned and wants to join another employer from 1 April 2024. His former employer tries to stop such employment by invoking the non-competition clause. The employee therefore requested in preliminary relief proceedings that the non-competition clause be suspended, on the basis of (among other things) the argument that the non-competition clause had become more onerous. How does the court in preliminary relief proceedings view this?
Judgment of the court in preliminary relief proceedings
The judge in preliminary relief proceedings suspended the non-competition clause. He argued that although the former employer and the employee's new employer were each other’s competitors, the non-competition clause no longer applied because the employment relationship had changed so radically that such clause had become significantly more onerous for the employee.
The employee started in the position of demonstrator/commercial assistant and was then promoted to executive product manager.
Due to his promotions, his responsibilities have increased a lot and this shows a profound change in the employment relationship.
In addition, the court in preliminary relief proceedings held that the non-competition clause was also very broadly formulated and that it prevented the employee from finding a new equivalent job within the entire (bakery) sector worldwide.
It should have been up to the former employer to offer the employee a new non-competition clause when he was promoted to executive product manager. However, the employer did not do so, leaving the consequences to be borne by the former employer.
What can be claimed in preliminary relief proceedings?
At issue in these preliminary relief proceedings is a successful reliance on Section 7:653 of the Dutch Civil Code. The non-competition clause has become more onerous and therefore it loses its validity and applicability. Incidentally, in preliminary relief proceedings, in which only a preliminary judgment is given, it cannot be determined that the non-competition clause no longer applies, because a provision determining the legal situation between the parties is by its nature not preliminary and therefore does not lend itself to preliminary relief proceedings.
However, the non-compete clause can be suspended, which is how the court in preliminary relief proceedings ruled.
After several promotions, the non-competition clause should have been re-agreed in writing, as the change in the employment relationship was of such a far-reaching nature that the non-competition clause became significantly more onerous.
Having failed to do so, the court in preliminary relief proceedings held that suspension of the non-compete clause was appropriate.
Read the full judgment here.
Conclusion
For both an employers and employees, it is important to seek help from a specialised employment lawyer if a non-competition clause is agreed or if things change in the employment relationship, for example because the employee is given a different position. The employment lawyers at SPEE advocaten & mediation will of course be happy to assist you.