The non-competition clause is a clause that can be present in an employment contract. It limits the possibilities for an employee to perform the same functions for a competitor. The non-competition clause also prevents an employee from becoming self-employed to perform equivalent functions. Here's everything you need to know about the non-compete clause and the conditions for it to be legal.
A non-competition clause is therefore a clause provided for in an employment contract. When this contract is terminated, the non-competition clause prohibits the employee from carrying out an activity deemed detrimental to the former employer. By signing the non-competition clause, the employee undertakes not to carry out an identical activity with a competitor of his employer but also on his own account. The collective agreement in force in the company may impose a higher indemnity in return.
The non-competition clause is applicable as soon as the employee submits his resignation, i.e. during the notice period. Of course, the terms are specified in the contract. Sometimes the clause only applies when the employee leaves.
The non-competition clause differs from the obligation of loyalty. This concerns the period during which the employee is active. It prohibits him from any other professional activity whether similar or not.
For a non-competition clause to be legal and therefore applicable, it must imperatively respect the following points.
If the non-competition clause does not respect the conditions mentioned above, it can be cancelled. The employee can also claim compensation from his former employer. It should be noted that all non-competition clauses prior to 2002 must be corrected because a new legal framework has been introduced. Employees must sign an addendum to the contract.
The employer can completely waive the non-competition clause. This waiver is made with or without the employee's consent. It is notified to him in a clear manner by means of a registered letter with request for acknowledgment of receipt. The waiver must take place when the employee is still under contract. The limit is fixed at the dismissal or at the period provided for in the contract. If the non-competition clause is lifted, the employer is not required to pay compensation.
Non-compliance with the validity criteria purely and simply cancels the non-competition clause. Employees are not required to comply with the clause. He may also claim damages in the event of prejudice. Attention ! Only the employee can take advantage of this cancellation. The employer must still pay the compensation.
If an employee does not comply with the non-competition clause, his employer can cancel the payment of the compensatory allowance and even request its reimbursement. The employer can also take legal action to claim damages. A real damage must be established. The consequences are serious because the employee may be forced to stop his new activity.
If the employer does not pay the compensation to his employee, the latter is not required to comply with the clause. He can also take legal action to claim payment of compensation but also damages if damage is found.
Finally, be aware that an amicable agreement can be found when the employee leaves. He can negotiate with his employer taking into account his future duties.
