A recent judgment of the Court of Appeal of 's-Hertogenbosch showed once again how difficult it is for an entrepreneur to prevent a former employee from competing (unlawfully) when no non-competition clause has been agreed upon.
During his employment, an employee of a transport company had registered his own competing company with the Chamber of Commerce. He had not reported this to his employer and in any case it had been established that he had once provided a transport service for a client of his employer through his own company. It was also alleged that the employee had put company-sensitive information on a USB stick, but this was not sufficiently established. The employee was dismissed with immediate effect.
Subsequently, the employer tried to prohibit the ex-employee from engaging in competitive activities in the transport sector for a year by means of summary proceedings. Unfortunately for the employer, both the court in first instance and the Court of Appeal of 's-Hertogenbosch ruled on appeal that - even though there were clearly unlawful acts during the employment - this was not sufficient to obtain such an injunction. According to the Court of Appeal of 's-Hertogenbosch, there was not a sufficiently well-founded fear that the ex-employee would cause damage to the employer with his own transport company.
This case showed, first of all, how difficult it is to get hold of the evidence for unlawful competition. It is easier when a non-competition clause has been agreed. But with the introduction of the Act on Employment and Security, this has become much more difficult for employees with fixed-term contracts, and in practice it appears that many contracts of indefinite duration are still being concluded without a non-competition clause. This case also shows that it is virtually impossible for the employer to obtain a ban in advance through legal proceedings. As long as the ex-employee does not actually compete unlawfully (and thus actually 'snatch' orders from clients), it is difficult to obtain an injunction through the courts. The courts only help when the calf is drowning.....
If you want advice on (unlawful) competition, do not hesitate to contact us.