Non-recruitment clause
Written by:
Hein Kernkamp
What is an anti-recruitment clause
A non-recruitment clause (also known as a non-poaching clause) is a clause between an employer and an employee that prohibits the employee from inducing colleagues to work for another employer. With the clause, the employer tries to protect himself against the recruitment of employees by former employees, but also, for example, against an employee who plans to start for himself and wants to persuade colleagues to join him. In the Netherlands, there ambiguous case law as to whether such a clause is valid and whether it falls within the scope of Article 7: 653 of the Dutch Civil Code, which protects employees from the consequences of an overly restrictive non-competition clause.
Article 7: 653 DCC
The non-competition clause restricts the employee from working after the end of the employment contract in a manner that he has chosen. Therefore, Article 7: 653 DCC determines which requirements such a clause must meet in order to be valid and the judge can always mitigate the consequences of such a clause. On the one hand, the non-competition clause serves to protect the business of the employer. On the other hand, the employee has the right to personal development of his skills and abilities and, moreover, a constitutionally guaranteed right to a free choice of work. The law gives the judge the option to moderate or the annul such clauses to find a good balance between both interests. As a general rule, the employee's interest is a given. If the employer has no interest, the clause is not enforceable.
Does a non-recruitment clause fall under the scope of Article 7: 653 DCC?
Case law varies. In the judgment of the Den Bosch Court of Appeal of 19 November 2019, the Court of Appeal held that the non-recruitment clause entered into with a recruiter fell under the scope of Article 7: 653 of the Dutch Civil Code and was void, because it had been entered into into a fixed-term contract contrary to the law.
In a judgment of the subdistrict court of the Central Netherlands of 6 February 2019, it was ruled that a non-recruitment clause fell beyond the scope of Article 7: 653 BW. The subdistrict court explained the term “employed”, as referred to in Article 7: 653 (1) of the Dutch Civil Code, as working / being employed.
"This does not include the provision in a clause that the employee may not in any way understand himself with a (former) colleague from his previous employer. Such short or longer contact does not fall under employment. An anti-recruitment clause such as the the present therefore does not fall within the scope of Article 7: 653 of the Dutch Civil Code, but must be assessed using the standards of good employer-ship and good employee-ship, in conjunction with the applicable rules from Book 3 and 6 of the Dutch Civil Code.".
Thus, the subdisctict court fell back on ordinary contract law, in combination with good employment practices. And those practices were violated by the employer. Under the clause it was even forbidden to have a cup of coffee on a terrace or to visit each other. The subdistrict court found the very broadly formulated clause a violation of the right to freedom of movement, the right to privacy and the right to free speech and therefore not acceptable. The employer's claim was rigorously rejected.
There is also case law in which an anti-recruitment clause was considered enforceable, so employees cannot simply ignore an anti-recruitment clause.
Conclusion
The conclusion is that both broadly and less broadly formulated anti-recruitment clauses will be critically examined by the judge if the employer decides to summon the employee in court. The tip for employers is to pay sufficient attention to clearly state and substantiate the employer's interest in enforcement of the non-recruitment clause.
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Do you have problems with a non-recruitment clause or poaching clause? Would you like to have the special provisions of your employment contracts screened and updated? Please feel free to contact us today and submit your question to us. We like to help you. It is not without reason that our motto is: "Your problem, our concern."
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