The non-solicitation clause

The free choice of employment is an important right for employees, which explains why clauses that limit the employee in his or her choice of (future) employer, such as a non-compete or non-solicitation clause, must be documented in writing in order for the employee in question to be duty-bound. More often than not an employee’s infringement of a non-compete or non-solicitation clause will expose him or her to a hefty penalty.

An employee’s service contract contained a non-solicitation clause rendering it obligatory for the employee – on pain of the latter having to pay a penalty in the amount of 25,000 euros –to refrain for a one-year term of the date of termination of his employment agreement from entering in the employ of any of his (erstwhile) employer’s customers.

The gist of the Sub District Court’s interpretation of the non-solicitation clause was that said clause had banned the employee at the post-employment termination stage from engaging in any business activities involving any of the employer’s then client base. Pointing to the importance for employees fully to appreciate the corollary of restrictive clauses such as a non-solicitation clause – as denoted by the statutory requirement of any such restrictive clause being documented in writing – the Court went on to dismiss the employer’s interpretation, the gist of which was that the employee had been banned from engaging in any business activities involving any of the employer’s business associates cum customers at any time while the employee had still been in the employer’s service.

The employer had transferred all its current agreements involving customers to a subsidiary company some time ahead of the date as at which the employee had left. The subsidiary company in question had not yet been incorporated at the time the non-solicitation clause had been entered into. The employee’s non-solicitation clause had at no time extended to include the subsidiary company’s customers. The Sub District Court therefore dismissed the employer’s reliance on the non-solicitation clause, in a decision which the Bois-le-Duc Court of Appeal subsequently upheld.

Dutch version: Uitleg relatiebeding