Resignation during probationary period does not negate non-compete clause

A non-compete clause will make it more difficult for the employee in question to take up a position elsewhere when his or her employment contract ends. This makes it a restrictive clause and one which is permissible on the strict condition that it should have been laid down in writing as part of an indefinite employment contract concluded with an employee who is no longer a minor.

An indefinite employment contract provided for a two-month probationary period, in addition to which it featured a non-compete clause banning the employee – on pain of a penalty – within a 12-month term of the date of termination of his employment contract to take up a position with any of his employer’s competitors. Having resigned while his probationary period was still going, the employee was notified by the employer that the non-compete clause was to be upheld even though the employee had quit while still on probation. The employee went on to take up a position with one of the employer’s competitors and launched interlocutory proceedings with the aim of having the non-compete clause lifted. Although the District Court stopped short of upholding the employee’s claim, in view of the short duration of the employment contract it did shorten the duration of the non-compete regime to three months. The Court stressed that the non-compete clause met the relevant requirements, which made it a bona fide clause and one whose validity had not been affected by the termination of the employment contract during the probationary period.

Dutch version: Concurrentiebeding blijft overeind bij opzegging in proeftijd