Previously, I wrote about a ruling by the Rotterdam District Court, which raised the question of whether an employee of an ICT company was in breach of his non-competition clause if he entered the service of the company to which he had been posted. The question is whether seconded employees are bound by a non-competition/relationship clause which prevents them from entering the employment of the company where they have been working on a secondment basis.
Until mid-2015, there were a number of rulings by subdistrict courts that had led to different outcomes. This case has since been submitted to the Court of Appeal in The Hague and the ruling was issued last week. The Court of Appeal ruled, just like the subdistrict court in the first instance, that an employee who has an open-ended contract and is seconded can also rely on the protection of Article 9a WAADI (Dutch Act on allocation of labour forces by intermediaries). Section 9a WAADI stipulates that 'the person who provides labour' to third parties shall not obstruct the creation of an employment contract between the seconded employee and the hirer. The Court of Appeal ruled that the European Temporary Agency Work Directive and Dutch law show that this so-called 'hindrance prohibition' also applies to employees with permanent contracts. The prohibition of obstructions is not only applicable to temporary employees and/or employees with a flex contract. The condition is that the employee also worked under the management and supervision of the user company. This will certainly often be the case when vacancies in a company are temporarily filled by a hired worker.
For the ICT sector in particular, this judgment of the Court of Appeal has far-reaching consequences. Many of these companies have based their revenue model on the secondment of well-paid ICT professionals, who are employed by them for an indefinite period of time. They cannot use a non-competition clause to prevent the employees from entering the employment of their clients (the hirers).
If you would like to know more about the ban on obstructions or the ways in which you as an entrepreneur can prevent an employee from walking out on your client, please contact us.