The non-solicitation clause does not always hold up either

A non-solicitation clause is valid in principle, but does not automatically hold up in court. Entrepreneurs wishing to prevent a departing employee from luring colleagues to their new employer can include such a clause in the employment contract. However, practice shows that a non-solicitation clause formulated too broadly or too absolutely may be set aside by the court, for example, because it disproportionately restricts the fundamental rights of the employee. The wording is therefore decisive in determining whether it is actually of any use to you at the decisive moment.

What is a non-solicitation clause?

An anti-solicitation clause (also known as an employee non-solicitationclause) is an agreement in the employment contract that prohibits a departing employee from approaching your other employees or persuading them to leave as well. The clause protects your workforce, not your customer base or market position as such.

The clause therefore has a fundamentally different purport than a non-compete clause:

• A non-compete clause prohibits the employee from working for a competitor or starting a competing business after the employment ends.
• a non-solicitation clause does not prohibit this: the employee is allowed to switch, but may not take colleagues with them or actively poach them.

In practice, the non-solicitation clause is often linked to a penalty clause, making it easier to enforce and ensuring that you do not first have to demonstrate concrete damages in the event of a violation.

Why do entrepreneurs opt for a non-solicitation clause?

Withdrawing an entire team can hit a company hard. If you lose several experienced employees to the same competitor in a short period of time, you lose knowledge, customer relationships, and continuity, while simultaneously facing expensive recruitment and onboarding processes. A non-solicitation clause is intended to limit this destruction of capital without depriving the employee of the right to take up employment elsewhere.

The case: an excessive anti-solicitation clause

In legal proceedings, an employer invoked the non-solicitation clause after, according to him, a departing employee had attempted to take other colleagues with him. The employer argued that the non-solicitation clause fell under the scope of the statutory provision regarding non-compete clauses (Article 7:653 of the Dutch Civil Code).

The judge did not agree with that. In the judge's opinion, a non-solicitation clause is not governed by the specific statutory framework for non-competition clauses, but is primarily limited by what is reasonable between a good employer and an employee. More importantly, the judge stumbled primarily over the wording of the clause.

Why did the clause not hold up?

The clause was written so broadly that it made it practically impossible for the employee to maintain any contact with former colleagues, unless he risked a fine each time. According to the judge, this constituted a disproportionate restriction of the employee's fundamental rights. Two aspects weighed heavily in this decision:

• Privacy and freedom of movement: the employee was effectively no longer allowed to approach his former colleagues, not even in a normal social context.
• Freedom of expression: because he could not express himself freely in contact with former colleagues, the clause also infringed upon this fundamental right.

The problem, therefore, did not lie in the idea of ​​a non-solicitation clause per se, but in the overly broad, overly absolute wording. As a result, it missed its mark, leaving the judge with little choice but to set the clause aside. The core of the matter: the broader and more absolute the wording, the greater the chance that a judge will declare the entire clause invalid.

How do you formulate a non-solicitation clause that is actually enforceable?

The lesson from this ruling is that a sustainable non-solicitation clause must be targeted and proportionate. It must protect the legitimate interests of your company without restricting the employee more than necessary. Points to consider:

1. Limit the ban to active poaching. Prohibit approaches with the aim of actively encouraging colleagues to leave, rather than any contact with former colleagues. Ordinary social or business contact must remain possible.
2. Determine a reasonable duration. A clause that continues indefinitely carries more weight and is more vulnerable in court than a clause that expires after a certain period of time.
3. Keep it concrete and clearly defined. Make clear which employees and which behaviors are involved, so that the clause cannot be interpreted as unlimited.
4. Include a proportional penalty clause. An excessively high penalty may be reduced by the judge or even work against you when assessing proportionality.
5. Record it in writing. Just as with the non-compete clause, proper written documentation is essential for the evidentiary position.

In short: don't delete, but write smarter. Wording that is too strict is just as risky as having no clause at all. Anyone who has doubts about the existing wording in their employment contractis best advised to have it legally reviewed.

What do you do if a former employee approaches colleagues anyway?

If you suspect that a departed employee is actively contacting your staff, proceed step by step instead of immediately invoking the fine:

1. Gather evidence. Consider messages, emails, witness statements from approached colleagues, or signals via social media. The distinction between “recruitment” and ordinary contact must be demonstrable.
2. Test your own clause. Check whether the wording is targeted and proportionate. A clause that is too broad can actually work against you in legal proceedings.
3. Seek legal advice. Have it assessed whether a formal notice, invoking the fine, or summary proceedings is most appropriate.

What does this mean for you as an entrepreneur?

A non-solicitation clause can be a valuable tool to protect your team and your business interests. However, its value stands or falls with the wording. In practice, a clause that is too broad offers you no protection: it can fail precisely when you need it most. The same applies to the related non-compete clause, which is likewise critically reviewed by judges.

Therefore, have clauses such as anti-solicitation clauses and non-compete clauses drafted or reviewed by a lawyer. This prevents a clause you rely on from proving unusable precisely at the decisive moment.

Frequently asked questions about the non-solicitation clause

Is a non-solicitation clause legally valid?

Yes, a non-solicitation clause is in principle legally valid. It is not governed by the specific statutory rules for non-compete clauses, but is limited by what is reasonable and proportionate. A clause formulated too broadly or too absolutely may be rendered inoperative by the court.

What is the difference between a non-solicitation clause and a non-compete clause?

A non-compete clause prohibits the employee from working for a competitor or starting a competing business. An anti-poaching clause, on the other hand, allows switching but prohibits the employee from taking colleagues along or actively poaching them.

Does Article 7:653 of the Dutch Civil Code also apply to a non-solicitation clause?

In the case discussed here, the judge ruled that the non-solicitation clause did not fall within the statutory framework of the non-competition clause (Article 7:653 of the Dutch Civil Code), but was limited by reasonableness and good employer-employee conduct. The legal classification may vary depending on the situation; therefore, always have this assessed based on your specific clause.

Must a non-solicitation clause be recorded in writing?

It is strongly recommended to record the clause in writing in the employment contract. Clear written documentation makes the clause demonstrable and more enforceable than an oral or vague agreement.

Can I attach a penalty to the anti-solicitation clause?

Yes, in practice a penalty clause is often included to make the clause easier to enforce. However, an excessively high penalty may be reduced by the court. Therefore, keep the penalty proportionate to the interest to be protected.

What should I do if a former employee approaches colleagues anyway?

First, gather evidence of actively approaching or persuading. Next, check whether the clause is formulated correctly and not too broadly, as this is often where things go wrong in practice. Preferably, seek legal advice before invoking the penalty or initiating proceedings.

Have a non-solicitation clause or employment contract drafted or reviewed?

Do you want to be certain that your non-solicitation clauses and non-compete clauses hold up? The legal experts at MKB Juristen draft custom employment contracts and clauses and review existing contracts for validity. This way, you strengthen your contractual position without jeopardizing the validity of your clauses.

Want to know more about our approach to employment law? Schedule a no-obligation intake and discuss your situation with a specialized legal expert.