Non-compete clause

When is a non-compete clause valid?

The clause must have been agreed in writing (usually in the employment contract). It must be necessary to protect the company's business interests and must be limited in time, geographic area and activity. Since the Work and Security Act (WWZ), fixed-term contracts require a written statement of reasons explaining why the clause is necessary.

Where does it often go wrong?

• Clause too broad: an entire sector or the whole of the Netherlands while the role was local.

• No statement of reasons for a fixed-term contract.

• Employer enforces the clause while itself being in breach of contract.

• Employee signs a settlement agreement without discussing the clause.

• Non-solicitation clause without the employee having any real customer relationship.

What can you do now?

Employers: have clauses drafted per job group, not one standard clause for everyone. Employees: read clauses before signing; when leaving, check your new role against the clause.

In case of conflict: gather the contract, job description and facts about customer contact. Don't threaten summary proceedings without a legal review first.

When should you involve Sørensen?

When drafting or revising clauses, when leaving or moving to a competitor, and when facing proceedings or summary proceedings. Also in settlement-agreement negotiations about a buy-out or shortening the clause.

We know the line drawn in case law and apply it to your sector.

Non-solicitation and customer clauses

Not every clause is called a non-compete clause. Non-solicitation and customer clauses relate to contact with relations. The test is similar: necessity, proportionality, fairness.

Enforcement and summary proceedings

Employers can claim compliance or damages. Fast-track proceedings are possible where there is an acute risk. We assess whether enforcement makes sense or whether negotiation is the smarter route.

Settlement agreement and buy-out

In the event of dismissal, the parties can agree to let the clause lapse in exchange for compensation. Record that explicitly.

Sector and role: a tailored approach

A clause suited to a sales director with a customer portfolio is not automatically valid for a back-office employee. We draft clauses per job family.

New employer and liability

Sometimes a new employer wants to know whether it faces risk by hiring you. We correspond with all parties or negotiate a release.

Case law and current developments

Courts regularly moderate clauses. We base our advice on current rulings, not on old templates.

Checklist before signing

Pay attention to duration, geographic scope, activities, the penalty clause and whether there is compensation in return. Employees: ask for a written statement of reasons for a fixed-term contract. Employers: record per role why the clause is necessary.

Confidentiality and related clauses

Besides competition, confidentiality and non-solicitation clauses also come into play. These too can be tested for fairness. We look at the whole package on departure, not just the clause with the largest heading.

Enforcement without escalation

Not every alleged breach of a clause needs to go to court. Sometimes a written warning or an adjusted arrangement in a settlement agreement is enough. We choose the route that fits the damage and the relationship with the departing employee.

Relationship with workplace conflict

Tension over a clause often arises within a broader workplace conflict. Mediation or targeted negotiation can be faster than summary proceedings. We assess whether that makes sense in your situation.