12 June 2016 - Mick Hurks

Keep your hands off my employees!

More and more often, employers are including non-solicitation clauses in their employment contracts. A recent decision by the District Court of the Northern Netherlands shows once again how important it is for employers to formulate such clauses carefully.

Non-solicitation clauses
Non-solicitation clauses are intended to protect employers from having their employees lured away to competing activities –for example, by former employees who have switched to other companies, or by employees who, while still employed, make plans to set up their own businesses or move on to other companies and, in anticipation of these new developments, want to find out whether their colleagues are interested in making similar changes.

Where’s the rub?
The above-mentioned decision makes clear the problems which may arise for an employer trying to successfully invoke a non-solicitation clause. In the case at hand, the following provision had specifically been included in the employment contract of the now ex employee. “During and for one year after the employment, the employee may not, directly or indirectly, and either for himself/herself or for third parties, approach employees of the employer or companies affiliated with it in order to induce them to terminate their employment with their employer or the companies affiliated with it.”The first part of the provision is good : The ex-employee was also prohibited from recruiting other employees while he still worked for the employer. In practice, many employment contracts include a non-solicitation clause which only applies to the period after employment.
The problem had to do with the part of the clause “directly or indirectly, (…) approach employees (…) in order to induce them to terminate their employment (…)”.In particular, it’s up to the employer to prove that the initiative came from the current or former employee. And that will often be difficult. A conversation during a chance meeting in a pub, a telephone call or an erased WhatsApp message are just some examples of situations in which the employer is put in an impossible evidentiary position. The outcome was therefore dismal for the employer in the case before the Northern Netherlands District Court. One of the ex-employee’s colleagues had taken the initiative to make contact. The ex employee then referred his former colleague to his new employer’s recruitment department. The ex employee was otherwise kept out of the job interview process and was not involved in the ultimate contract offer. The court concluded that it had thus not sufficiently been established that the ex employee had breached the non-solicitation clause.

As this decision demonstrates, it’s critical that an employer think long and hard the value and substance of a non-solicitation clause. For instance, a non-solicitation clause might be drawn up in such a way that it  not only prohibits approaching employees, but also assisting in creating an employment relationship. 

Of course, we’d be more than willing to help you in drafting a non-solicitation clause which is perfectly geared to your needs. For advice in this area, please contact Mick Hurks or one of the other lawyers in our Employment Law Department.