If your (former) employee violates or threatens to violate the non-competition clause, you’ll want to take action as soon as possible to prevent the employee from running off with your knowledge and/or your customers. Two recent court rulings make it clear that you must do this quickly, because otherwise you will lose the right to invoke the non-competition clause at all.
If you wait too long, judges will rule that you as an employer apparently do not attach great importance to the non-competition clause and that the employee could therefore trust that the non-competition clause does not impede their work for the competitor or your relations.
Judiciary: waiting one month is already a long time
So if you suspect or find out that the employee is going to work for a competitor or with your relations, quick action is required. The ‘s-Hertogenbosch Court of Appeal ruled on February 16, 2021 that an employer who waited three months was too late to invoke the non-competition clause. It was about a physiotherapist who told his employer, a health / fitness centre, that he was going to join another physiotherapy and fitness practice, that being a competitor. The (former) employer did not take...
How does the trial period work?
The probationary period is a short period at the beginning of an employment contract in which the employment contract can be terminated immediately by both the employer and yourself. There is only a probationary period if this period has been agreed upon in writing.
Duration of the probationary period
The maximum duration of the probationary period that can be agreed depends on the length of your employment contract. For example, the probation period for an open-ended employment contract may not exceed two months. Even if there is a fixed-term employment contract with a duration of two years or longer, a trial period of two months may be agreed.
If you have a fixed-term employment contract with a duration of less than two years but longer than six months, the probation period may not exceed one (1) month. This is the case, for example, with an annual contract. If there is an employment contract with a duration of six months or less, no trial period may be agreed at all.
Rules regarding the probationary period are strictly applied
Rules regarding probation must be strictly observed by an employer. If this does not happen,...
New EU Privacy Law
Many online users have likely noticed an influx of emails, from some companies, highlighting new privacy policies and user agreements online in cooperation with new EU laws.The new General Data Protection Regulation (GDPR) will be the most significant data protection overhaul in two decades starting from 25th May, replacing the out-dated and much criticised 1995 EU Data Protection Directive (DPD); it seeks to address the growing challenges of globalisation and international data flow, as well as improving user control over their own personal data online. The new laws will strictly apply to all companies operating in the EU, no matter where they are based.
Why Change the Law?
The 1995 Data Protection Directive was first introduced for the enforcement of privacy as a fundamental human right, giving people protection over their personal data. With the dawn of IT and computer systems as early as the 1970s, the EU proposed measures to regulate the online flow of data and have continued to adapt their legislation to accommodate further evolving technology. However, in light of the recent Facebook/Cambridge Analytica scandal, and other similar situations, questions have been raised regarding the effectiveness of the current law to protect consumer...
The protection of confidential information and company secrets has formed an integral part of working culture in the Netherlands, with increasing number of employment contracts including some form of confidentiality clause. Under these contracts, employees are legally unauthorised from sharing company information, even some time after the termination of their employment. The first obvious penalty for violating one of these contracts is the immediate termination of one’s employment, for the breach of confidentiality as well as one’s employment contract.
What some employees fail to realise is that a non-disclosure agreement is a legally binding contract, and thus any breach is subject to legal action. A typical confidentiality clause specifies a penalty fine that should be paid to the company in such a case. This can even be the case after the termination of one’s employment if specified in the agreement. For example, some workers such as car engineers, can be prohibited from working with rival companies for a specified time period after the end of their employment to prevent sharing trade secrets with competitors. This may seem harsh, but it is a small price to pay compared to other legal actions some may face.
Unlike other countries, employers cannot sue...
In the world of competitive business, preventing trade secrets and employees from falling into the wrong hands is necessary for a company’s success. Under Dutch law, non-competition clauses provide a contractual obligation to prevent employees from finding employment with a competitor after the termination of their employment, with the main purpose of protecting an employer’s business interests through the protection of valuable company information and the remaining employees. Under normal circumstances, this type of agreement is not permanent and typically lasts for a year, and failure to comply can mean enforcing the clause in a court case, which can allow an employer to claim damages in some cases.
Contracts containing confidentiality and non-competition clauses are becoming increasingly common in the Netherlands for employees signing up to new jobs, especially within more technical fields such as engineering and technology, in order to prevent technical knowledge from being leaked outside the company. It is also prominent in marketing sectors to prevent leaking customer and supplier information. Depending on an industry or market, an employer can determine what to include in their employee’s non-compete clause including:
• A list of competitors a former employee is not allowed to work for.
• Restrictions on...
Letting go of an employee can be one of the hardest things any employer can do, but if the reasons are justifiable, then it is a perfectly legal and acceptable course of action to take. With that in mind, terminating an employee is not a decision to be taken lightly when running a business; making a calculated judgment means taking into account the numerous potential costs that come with letting an employee go, as well as the potential legal ramifications. Businesses today often fear the possibility of a lawsuit when letting a worker go, and they can incur extra costs if the matter is brought to court.
As with any important business decision, firing an employee first requires a good reason. This could be due to poor performance, misconduct or the lack of demand for the position an employee holds, whereby it becomes disadvantageous for a company to keep him or her. However, it is important to stay within legal boundaries, so firing an employee based on personal reasons or discrimination is always unacceptable. Firing employees on the spot for misconduct is also a legally risky move; it is always better to investigate an incident, gather evidence and ask the...
As of July 1, 2017, a number of legislative changes will enter into force that are of importance to HR professionals. The Arbowet changes. And the bill that changes the minimum wage and minimum holiday allowance will come into effect in part. An overview of the amendments to legislation as of July 1, 2017.
From 1 July 2017, an employee may request a second opinion from another company doctor. In addition, employees are given the legal right to speak to the company doctor during an 'open consultation hour'. Also, the prevention worker gets a firmer position and the works council gets more control over working conditions policy. Employers must enter into a (new) basic agreement with the labor service provider. This can be done by completing the current contract and by concluding a new contract. Although there is a transitional contract for running contracts, it is wise to discuss the contract with the labor service provider in the short term. Please note that the OR has the right to vote on the basic contract with the labor service provider.
In the new Arbowet, the SZW Inspectorate gets a bigger role. If an employer has not concluded a contract with...
In the 1980s the Dutch government introduced legislation that led to a pivotal reformulation of the economy and the labour market in the Netherlands. This became known as the “Dutch Model”, and attracted attention from economists and policy makers globally. It inspired the likes of British Prime Minister Tony Blair and the German Chancellor Gerard Schröder in their own reformulation of labour market policies in their respective countries. The Wassenaar Agreement of 1982 forms the core of the Dutch model. The main terms of the agreement included wage increases (with an eye to overall productivity growth), a growth in the number of part-time jobs for job redistribution purposes, and more labour market flexibility. These various changes resulted in the success of the model, leading to an increase...
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