In recent summary proceedings before the Rotterdam District Court, one of the issues at stake was whether an employee of an ICT company could be restricted, via a non-solicitation clause, from entering the service of the hiring company.[1]
Employee was employed by ICT company A, but actually worked for the hiring company B. His employment contract contained a non-solicitation clause. ICT company A argued that on the basis of this non-solicitation clause, the employee was not allowed to enter the service of hirer B. The employee entered the service of hirer B. One of the issues in the proceedings was whether the non-solicitation clause was legally valid. The Rotterdam District Court ruled that it was not. The non-solicitation clause was null and void, so there was no question of a breach of the non-solicitation clause.
The law stipulates that employees who are made available to a third party to work under the management and supervision of that third party (hirer) may not be restricted in their employment by that hirer. [2] If a temporary employment agency or a secondment agency nevertheless binds its employees to a non-competition or non-solicitation clause in this way, this clause is, in principle, null and void. There was and still is disagreement in the literature and in case law about whether this only applies to temporary agency workers in an uncertain employment position, or also to employees of (ICT) secondment agencies working on the basis of an employment contract for an indefinite period. The Rotterdam District Court ruled that there were no reasons to assume that this article in the law (WAADI) would only apply to temporary agency workers. According to the Rotterdam District Court, secondment companies who post their employees to their clients cannot use a non-competition or non-solicitation clause to prevent the employee in question from entering the service of that client.
[1] District Court Rotterdam, 12 June 2015, case number 4110203 VV EXPL 15-255.
[2] Article 9a of the Allocation of Labour by Intermediaries Act (WAADI).