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A non-compete clause can also hold up in the case of very short employment. An employee who wanted to switch to a competitor after eleven days was prevented from doing so by his non-compete clause. The judge reduced the duration (from eighteen to nine months) but upheld the clause, including a penalty. The decisive factor was that the employee knowingly agreed to the clause and immediately had access to sensitive information at the management level.
A non-compete clause prevents an employee from simply strengthening a competitor after their employment ends — for example, with competitively sensitive information or through expensive training. It usually applies for one to two years after termination of employment (the court may reduce the duration) and is often linked to a penalty (which the court may also reduce).
Requirements for a non-compete clause
Non-compete clauses are permitted, but must be recorded in writing. In an employment contract for an indefinite period, it can be easily included. For a fixed-term contract, the requirements are stricter: you must provide detailed justification in advance that compelling business interests warrant the clause. The judge will then only consider that pre-formulated justification.
Eleven days in service, still a non-compete clause
In this case (ECLI:NL:RBOVE:2021:3156), an employee signed a contract with a non-competition clause at a plastics company, for a gross monthly salary of over 6,000 euros (excluding bonus and holiday pay). After just eleven working days, he wanted to leave for a “once-in-a-lifetime” offer from a German competitor. The plastics company invoked the non-competition clause. The employee considered eleven days far too short to acquire trade secrets and disputed that the German company was a direct competitor.
The judge ruled against him: he knowingly agreed to the clause, the German company was indeed a major competitor, and the employee was immediately involved at a management level, enabling him to gather information that would unfairly benefit the competitor. However, the judge reduced the duration from eighteen to nine months, with a fine of 5,000 euros per violation and a maximum of 500,000 euros. For the time being, therefore, the employee could not start working for the competitor.
Frequently Asked Questions
Does a non-compete clause also apply to short-term employment?
Yes, that is possible. The decisive factor is not the duration of employment, but rather, among other things, whether the employee knowingly agreed and had access to competitively sensitive information.
Can the judge modify a non-compete clause?
Yes. The judge can reduce the duration and the penalty, but can uphold the clause, as in this case where eighteen months were reduced to nine.
Am I allowed to include a non-compete clause in a temporary contract?
Only with a detailed, pre-established justification of compelling business interests. Without that justification, the clause in a fixed-term contract does not hold up.
Have a non-compete clause drafted
The employment lawyers at MKB Juristen draft a sustainable non-compete clause , for a fixed or indefinite period. View our expertise in employment law or schedule an intake meeting .
