Non Solicitation Clause
Written by:
Hein Kernkamp
The Non Solicitation Clause in Dutch Employment Contracts
A lot of employment contracts with a Netherlands employer contain a non solicitation clause. Should you sign a contract that contains such a clause and are there remedies? Read it in this article.
What is a Non Solicitation Clause?
A non solicitation clause in a Netherlands employment contract is regarded as special form of a non-competition clause and thus subject to the rules of Article 7:653 DCC. Where a non-competition clause prohibits the employee from performing certain activities, a non solicitation clause usually prohibits the employee from engaging with certain parties. There are clauses that prohibit the employee from doing business with some named customers, but also clauses that prohibit to work for all customers and suppliers of the employer.
Is a Non Solicitation Clause enforceable in the Netherlands?
From a legal point of view, a non solicitation clause falls under the same rules as the non-competition clause. For example, it must be agreed in writing with an adult employee. It must also be revised if there have been major changes to the employment contract. The validity requirements of non-competition clauses in general are discussed in our article on non-competition clauses in contracts subject to Dutch Employment Law.
Suppliers and customers
In a lot of standard clauses it is stipulated that the employee may not be engaged with or employed by suppliers or customers of the employer. This can be useful for the employer, even if the work at those suppliers or clients is not directly competitive but may nevertheless be harmful. For example, a well drafted clause can prevent the former employee from becoming head of the purchasing department of a customer.
Which is the preferred clause?
A non-solicitation clause is less of a burden for an employee than a non-competition clause. With the non-competition clause, the employee may no longer perform a certain type of work at all - within the limits of the wording of the non-competition clause. A non solicitation clause that is reasonably formulated ensures that the employee cannot get hold of the (potential) customers of the employer. The employee who is bound by such clause can therefore continue to practice his profession, but not making use of the business relations of the former employer. A judge will therefore be less likely to see reason to moderate the clause or to put it entirely out of operation. Also, a fine on a non solicitation clause will not be moderated so quickly, because in the event of a violation of the non solicitation clause, the employer is more likely to suffer actual damage.
Replace competition clause with a non solicitation clause?
Is this the way to go for an employer? It depends. A disadvantage of leaving the non-competition clause out can be that the employee is still free to work for a competitor. It is true that he himself is not allowed to approach relations of the former employer, but who says he is not whispering to his new colleagues? It can also be difficult to establish that the non solicitation clause is being violated. A customer who transfers to the competitor with the employee will usually not inform the former employer.
Combined clause
In practice, both clauses are included in the employment contract. Although it cannot be excluded that in a proceeding the non solicitation clause will also be moderated as a result of weighing of interests, in many cases the non solicitation clause survives and has a preventive effect.
Consult us today without obligation
Do you have problems with a non solicitation clause in a Dutch employment contract or do you want to have your employment contracts screened and updated? Then contact us today without obligation and submit your question to us. We are there to assist you. It is not without reason that our motto is: "Your problem, our concern."
More information?
Hein Kernkamp will gladly help you further.
