A non-competition clause can significantly restrict an employee\u2019s next career move. But how much weight does the employer\u2019s interest carry if the employee has no specialised commercial knowledge, does not hold a strategic position and, moreover, is moving to a company owned by a former colleague? In a recent ruling, the Gelderland District Court considered precisely that question. The employer sought to prevent a departing helpdesk employee from taking up employment with this competitor, but the court ruled against them. After weighing up the mutual interests, the subdistrict court suspended the non-competition clause.<\/p>\n
What this case is about<\/strong><\/p>\n An IT service provider for SMEs had employed a staff member since March 2012, on a permanent contract from 2015 onwards. His employment contract contained a confidentiality clause and a non-competition clause. The latter prohibited him from working for a comparable company within a 30-kilometre radius for six months after leaving the company, on pain of a fine of \u20ac4,500. In 2016, his role was changed. At the start of 2026, the job title was changed again. A few years earlier, two business partners within the company had ended their partnership, after which one of them set up a competing IT firm within the radius specified in the clause. In February 2026, the parties agreed on an addendum providing for a substantial pay rise.<\/p>\n On 28 April 2026, the employee announced his intention to resign and requested that the non-competition clause be waived. The employer held him to the clause in relation to a number of specifically named competitors, including the company set up by the former business partner. On 12 May 2026, the employee gave notice to terminate his employment contract with effect from 1 July 2026. The employer confirmed this and again drew attention to the non-competition clause.<\/p>\n The employer brought summary proceedings seeking enforcement of the non-competition clause and an injunction prohibiting the employee from working for the competitor. In his counterclaim, the employee primarily argued that the clause had ceased to be valid because the change in his role had made it a greater burden on him; in the alternative, he sought a partial suspension of the clause; and, conditionally, he sought equitable compensation due to his chronic visual impairment and a reduction in the penalty.<\/p>\n When is this employee still bound by his non-competition clause?<\/strong><\/p>\n The subdistrict court judge first noted that a claim in summary proceedings is only admissible if it is plausible that a similar claim would also succeed in proceedings on the merits, and that both parties have a sufficiently urgent interest in the matter. It was not in dispute that the non-competition clause had been validly agreed at the time. In summary proceedings, the subdistrict court judge may anticipate a possible annulment by the court hearing the case on the merits by suspending the clause in the meantime.<\/p>\n The subdistrict court rejected the argument that the clause had \u2018become more onerous\u2019 as a result of the change in role and had therefore lost its validity. For this to be the case, the clause would have to hinder the employee, as a result of the change in role, to a greater extent in finding a new, equivalent position. However, the same prohibition on working for competitors within the same radius applied to both the old and the new position. The claim that the new position would impose a greater burden was insufficiently substantiated.<\/p>\n The subdistrict court then assessed the balancing of interests under Section 7:653(3)(b) of the Dutch Civil Code, and this did indeed favour the employee. A non-competition clause serves to protect the company\u2019s business turnover \u2013 that is, specific know-how and goodwill \u2013 and not simply to retain employees. The fact that an employee \u2018takes with them\u2019 the knowledge and experience they have gained upon leaving is inherent in the recruitment of an experienced employee and does not, in itself, affect the company\u2019s business. Such an effect only arises when the employee possesses essential commercial or technical information, unique work processes or strategies that give the new employer an advantage. This is also the case where the employee works so closely with certain clients that a serious risk of them switching allegiances arises.<\/p>\n The latter was not the case here. The employee held an operational role, had no knowledge of procurement information or price agreements, did not conduct client negotiations and played no active role in concluding contracts. Whilst he was familiar with the clients and their IT systems, this does not qualify as commercially sensitive information. Moreover, his contact was not with the clients themselves, but with their employees, whom he assisted with IT problems in his capacity as a helpdesk staff member. That contact is not of the kind for which the non-competition clause offers protection. The fact that he was regarded as easy to get on with is a personal trait and not knowledge he acquired whilst working for the employer, and therefore does not merit protection.<\/p>\n The employer\u2019s fear that, after taking up employment with the competitor, the employee might approach clients by stating that he had worked there is insufficient to retroactively classify his knowledge as commercially sensitive. The subdistrict court also rejected the employee\u2019s argument that the employer would have no interest in the matter in any case, as the competitor would already have access to customer information via the business partner who had left earlier. That person\u2019s knowledge dates back approximately seven years and is now out of date. Furthermore, for any trade secrets, the employer can rely on the separate confidentiality clause.<\/p>\n As it has not been established that the employee possesses information worthy of protection, the employer lacks a compelling interest in enforcing the clause. Furthermore, given the employee\u2019s severe and chronic visual impairment\u2014which makes travelling increasingly difficult for him\u2014the move offers him the significant advantage of being able to work in his own place of residence. The subdistrict court judge considers it implausible that he would easily find a comparable alternative job. The job vacancies submitted by the employer were insufficiently specific for that purpose.<\/p>\n The subdistrict court judge ruled that, in relation to the employer\u2019s interest to be protected, the employee is unfairly disadvantaged by the clause. It is therefore sufficiently plausible that the court of first instance will set aside the clause, and it is justified for the subdistrict court judge to anticipate this in summary proceedings. As summary proceedings are not suited to the employee\u2019s more far-reaching primary claim, the subdistrict court suspended the clause. This suspension is, as a minimum, encompassed within the employee\u2019s primary claim. The employer\u2019s claim for specific performance was dismissed. The subdistrict court did not address the employee\u2019s other claims.<\/p>\n