The Central Appeals Court (CRvB) recently ruled that an employee was culpably unemployed and not entitled to unemployment (WW) benefit, because he was bound by a non-compete clause and therefore had no real prospect of employment when he changed jobs.
The employee joined his employer on 23 January 2012. His employment contract included a non-compete clause, under which he was prohibited, for up to one year after his employment ended, from working for or being involved with a business active in the same field as, or otherwise competing with, his employer.
After resigning in 2017, the employee started working for “Company B” on 1 January 2018, on a permanent contract of similar scope. His former employer stated that Company B was a competitor, meaning the employee was acting in breach of his non-compete clause. Company B subsequently terminated his employment contract on 16 January 2018, during the probationary period.
The employee then applied for unemployment benefit. He was granted a provisional benefit from 16 February 2018. On 19 April 2018, the UWV decided that he was in fact entitled to WW benefit from 16 February 2018, but that it would not be paid out. According to the UWV, the employee was culpably unemployed, since he had taken a foreseeable risk of unemployment by accepting a job while bound by a non-compete clause.
The UWV stated that the employee had wrongly received EUR 7,959.87 in WW advance payments for the period from 16 January 2018 to 31 March 2018, and reclaimed this amount from him.
The CRvB ruled that it must be assessed whether a real prospect existed of employment lasting at least 26 weeks. The arrangements made between the (new) employer and the employee are of great importance here, including whether – if the employee is bound by a non-compete clause – he made arrangements with his new employer that conflict with that clause. This was the case here. The CRvB therefore ruled that the employee had no real prospect of employment of at least 26 weeks with his new employer. He had failed to sufficiently substantiate that he was entitled to assume his former employer would not invoke the non-compete clause.
The UWV had therefore rightly ruled that the employee had to repay the WW advance payments.
For the CRvB’s full ruling: click here (in Dutch).
Questions about the above?
Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
