Everything you need to know about the competition clause

Research shows that one out of five employees in the Netherlands is bound by a competition or relationship clause. In the past or in their current employment contract, many employees are therefore bound by an agreement that protects the interests of the employer. We are currently in a very tight labor market, which makes the competition and relationship clause all the more important. Staff is scarce and new employees are regularly sought at competing companies. In this blog, you can read more about exactly what the non-competition clause means, what you can do as an employer if you suspect a violation and how you can prevent an unrewarding investment in a new employee.

What is a competition clause?

One competition clause is a legal tool that allows employers to protect their interests. It is a contractual provision that restricts an employee from working (usually after termination of employment) for a fixed period and/or distance at a competing company or from starting as a self-employed person. The competition clause is therefore intended to protect the interests of employers, but can also limit the career development of employees. In practice, the terms and validity of a non-competition clause are often the subject of discussion. It is therefore important, as an employer and employee, to be well aware of the rules and restrictions that apply to the contractually established competition clause.

What is the difference between a competition clause and a relationship clause?

The competition clause therefore restricts the freedom of employees to work for a competitor to their (former) employer or to start as self-employed and to carry out the same activities. A relationship clause, on the other hand, is a provision in an employment contract or an assignment agreement that states that the employee or contractor may not have contact with relations (customers or suppliers) of the employer or client after the termination of the agreement. The purpose of a relationship clause is to prevent the employee or contractor from using the knowledge and contacts he or she has acquired during employment after the end of the agreement, in order to compete with the employer or client.

Presumption and proof of the violation of the competition clause

First, it is important that, as an employer, you have properly defined the validity and the specific provisions of the non-competition clause in the employment contract, thereby increasing the chance of successful legal action.

However, proving a (former) employee who you suspect is not complying with the competition clause is difficult. As a (former) employer, you often do not have the appropriate burden of proof, but it is essential that the employer carefully collects evidence to prove the violation of the competition clause. Examples include:

  1. Proof of the activities of the former employee: This includes written evidence such as emails, letters, contracts, quotes or invoices that show that the (former) employee is working in a way that is contrary to one of the clauses.
  2. Witness statements: The employer can ask witnesses to make statements about the current work at the (former) employee's competitor.
  3. Investigation: The employer can launch an investigation into the activities of the (former) employee by calling in a detective agency such as the Haagsch Detective Office.

Curious about what evidence was used in previous court cases? On rechtspraak.nl you can find a number of examples.

Using an investigative agency

We would like to zoom in a little deeper on the last example. After all, it is very difficult to collect evidence yourself if you, as an employer, suspect that a (former) employee is not complying with the competition or relationship clause. Haagsch Recherchebureau specializes in investigating a possible violation of this. Through Digital and Tactical Research, we determine whether there has been a violation. After that, in cooperation with a lawyer, we can help you with the next steps. Good to know is that we always test first to see whether there is sufficient reason and legal basis for an investigation.

Preventing infraction

As stated earlier, it is important that you, as an employer, have properly laid down the validity and the specific provisions of the competition clause in the employment contract. However, it is of course also possible that you want to hire a new employee who is still dealing with a competition clause yourself. As an employer, you are not liable, but it is a waste of investment. That is why the Haagsch Detective Office also offers Screening on. When screening your potential new employee, we look at, among other things, a possible BKR registration, Diploma check, CV check, referee check and, if desired, we will conduct an interview. Based on this information, you will receive independent advice from us and you don't have to worry about who you let into your organization.

Free advice?

We are happy to advise you without obligation and completely free of charge, after all, every case is different. We can well imagine that you find it exciting to hire a detective agency, after all, you don't do that every day. An informal one consultation therefore, if necessary, takes place on neutral ground and the contact takes place via your preferred channel. This so that the other party does not get any of the contact you have with us. For example, we can be reached via WhatsApp, phone, email and in person.

About the Author
As a former Interim Innovation Consultant at the National Police, Jan-Paul Kreukniet has gained a wealth of experience and knowledge in the field of research and safety. He knows better than anyone how important it is to keep innovating and keeping up with the latest developments in his field.

Haagsch Recherchebureau is therefore constantly investing in new tools and technology to increase the quality of investigative investigations.

Share or save a blog?

WhatsApp Logo