Many employment contracts contain a non-competition clause or a non-solicitation clause. These provisions limit your options to work or maintain contact with a new employer after your dismissal or departure. This can have far-reaching consequences for employees, especially when they want to take a new career step.
A non-competition clause is an agreement in the employment contract that stipulates that you may not work for a competitor after the end of your employment. A non-solicitation clause goes one step further: it prohibits you from approaching or working with business relations of your (ex-)employer — such as customers or partners — after your departure. Is there a conflict about the non-competition or non-solicitation clause, for example because you believe the restriction goes too far or the agreement is not clear? In that case you can go to court to have the case assessed.In this article we explain what a non-competition clause and non-solicitation clause are, when they are valid, and how you can defend yourself against them.
What is a non-competition clause?
A non-competition clause prohibits an employee from working for a competitor or starting a competing company himself after termination of the employment contract.
This clause can take different forms and often contains restrictions on:- The type of work: for example, not doing the same work for a new employer.
- The new employer: for example, do not join a direct competitor.
- The geographical area: for example not operating within a specific region.
- The period: for example, do not perform competitive work or start your own business for one or two years after leaving employment.
Important:
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It must be agreed in writing.
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It may only be included in a permanent contract.
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With a temporary contract, this is only permitted with compelling reasons.
What is a non-compete agreement?
A non-compete clause means that an employee may not simply work for a competing company or start a competing company himself after his employment ends. In practice, this is often called "non-compete" or "non-compete"—the terms mean the same thing. In short: with such a clause, an employer wants to prevent trade secrets, customer relationships or specialist knowledge from ending up directly with the competitor.Does a non-competition clause also apply to self-employed persons or contractors?
Yes, a non-competition clause can also be agreed with self-employed persons or contractors. However, in those cases, different rules may apply than for employees. It is important to make clear agreements, because freelance and assignment agreements are not automatically covered by employment law. So pay close attention to the content and conditions of the clause.What is a non-solicitation clause?
A non-solicitation clause prohibits an employee from doing business with customers, suppliers or other relations of the (former) employer after employment.
This clause is often found in commercial functions, but can be used in any sector.
Only a relationship clause, no non-competition clause: what does that mean?
If only a valid non-solicitation clause is included, but no (valid) non-competition clause, this has specific consequences for your options after your termination of employment.- In that case, you may work for a competitor or start your own company in the same field.
- What is not allowed: doing business with (former) customers, suppliers or other relations of your former employer, as long as the non-solicitation clause applies.
- In other words, you are free to work in the industry, as long as you do not maintain contact or collaborate with the business relations of your previous employer.
When is a non-competition or non-solicitation clause valid?
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The clause must be in writing in the employment contract.
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For temporary contracts, the employer must motivate why it is necessary.
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The restriction may not be unreasonable; the judge can annul or limit the clause if it goes too far.
How can you defend yourself against a non-competition or non-solicitation clause?
Negotiation when concluding the contract or upon departure.
Before taking legal action, it is often worth first seeing whether you can solve the problem together. This can be done, for example, by negotiating directly with the other party. Sometimes you can reach an agreement together and a lawsuit is not necessary at all, or it can be completed more quickly.Mediation: finding a solution together
Can't find a solution together? Then you can opt for mediation. An independent mediator guides the conversation between you and the other party, with the aim of finding a solution together. Mediation is often less formal, faster and can even be used if a lawsuit is already underway.Ruler: assistance from an independent third party
If a dispute persists, you can sometimes contact an independent third party who will work with both parties to find a solution. Only if that fails will this person make a binding decision. Such a procedure can help to reach a practical outcome without having to go all the way to court. Involve the judge: the judge can annul the clause in whole or in part.Who can go to court?
Are you unable to reach an agreement with your (former) employer about the non-competition or non-solicitation clause? Then you can both submit the dispute to the judge. Both the employee and the employer have the right to initiate proceedings if they disagree about the application or legality of the clause.Claim damages if the clause disproportionately disadvantages you.
What is mediation and how does it help with conflicts over a non-compete agreement?
Mediation is an alternative way to resolve conflicts without going directly to court. An independent and impartial mediator guides the conversation between you and the other party. Together you look for a solution that both sides can agree on.- Mediation is confidential and often faster and more informal than a lawsuit.
- You have more control over the outcome than with a judicial decision.
- Even if legal proceedings are already underway, you can still try mediation.
Practical examples
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Example 1: An employee with a temporary contract received a non-competition clause. The judge overturned this because there was no serious motivation.
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Example 2: An account manager was not allowed to contact his old customers due to a non-solicitation clause. The judge limited the clause to only 6 months.
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Example 3: An employee was allowed to work for a competitor, but negotiated compensation from his employer.
Checklist of non-competition and non-solicitation clauses
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📄 Is the clause clear and written in your contract?
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⏳ Does the clause apply in a temporary contract without motivation? Then it is invalid.
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🧑⚖️ Is the clause too broad (e.g. too long a duration or too large an area)? Then the judge can limit this.
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💶 Ask for compensation if the clause hinders you from finding a new job.
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⚖️ Always have your contract legally assessed.
Common mistakes
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Thinking that a non-competition clause is always legally valid.
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Do not object if the relationship clause is too strict.
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Agreeing too quickly without negotiating.
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Not realizing that the judge can limit or annul the clause.
Frequently asked questions (FAQ)
1. Is a non-competition clause allowed in a temporary contract?
Only with strong written reasons from the employer.
2. How long can a non-compete clause last?
Usually 1 to 2 years; longer terms are often unreasonable.
3. Can I challenge a non-compete clause?
Yes, it can be annulled in whole or in part in court.
4. What is the difference between a non-competition clause and a non-solicitation clause?
Competition is about working for a competitor, non-solicitation clause is about doing business with customers/relations of your old employer.
5. Will I receive compensation if I am bound by a non-competition clause?
That is possible, especially if the clause seriously hinders you.
6. What are the consequences if a judge rules that the employer has acted seriously culpable in dismissal? In that case, the non-competition clause usually expires completely. You may then immediately start working for a competitor, because the judge believes that you no longer need to be bound by the clause due to the employer's behavior.
Why Arslan Lawyers?
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Specialized in labor law and contractual clauses
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Experience with annulling or limiting excessively strict non-competition and non-solicitation clauses
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Negotiate restrictions or allowances
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Protect your career and career opportunities
Conclusion
A non-competition or non-solicitation clause can seriously limit your freedom in the labor market. Fortunately, there are legal limits, and you can often negotiate or have the clause annulled. Always have your contract reviewed before signing or switching to a new employer.