A non-compete clause can restrict you after your employment from working for a competitor or starting your own business. This directly affects your freedom to choose work. At the same time, an employer may have a legitimate interest in protecting know-how, customers or sensitive business information. The practical question is often: what if your position (or responsibilities) changes over time? Does the non-compete clause still apply automatically?

In this column, I explain the legal basis, how judges assess it, when you often need to sign a new clause in the event of a change in position, and what steps you as an employee can wisely take.

What is a non-compete clause and when is it valid?

A non-compete clause is an agreement between employer and employee that restricts the employee after the end of the employment from working for a competitor in a certain way or engaging in competing activities. The basis is in article 7:653 of the Dutch Civil Code.

Key conditions

• Agreed in writing. A non-compete clause (and usually also a non-solicitation clause) must be recorded in writing and consciously accepted by the employee.
• Only with an adult employee. A non-compete clause with a minor employee is void.
• Fixed term: extra strict requirement. In an employment contract for a fixed term, a non-compete clause is in principle only valid if the employer motivates in writing in the clause itself that this is necessary due to compelling business or service interests.

How strictly is a clause formulated?

In practice, the precise wording makes a big difference: duration, geographical scope and which activities are exactly prohibited. The broader or less clear the clause, the greater the chance that a judge will limit, suspend or (partially) annul the clause if it is too onerous.

Balancing of interests and possible compensation

Judges often look at the balance: what concrete interest does the employer have and how great is the disadvantage for the employee? Depending on the situation, a judge can limit or suspend a clause. The judge can also determine in some cases that the employer must pay compensation as long as the restriction applies (for example, if the employee is significantly hindered).

Waadi and temporary work/detachment: only relevant in a specific situation

Sometimes the Allocation of Workers by Intermediaries Act (Waadi) is mentioned in combination with non-compete or non-solicitation clauses. This is only relevant if you have been made available (for example via temporary work or detachment) and you want to enter into employment with the client/hirer after the end. Then the impediment prohibition may play a role.

Do you not work via making available (but "simply" employed by an employer)? Then the Waadi is usually not the right legal hook for assessing your non-compete clause.

Change in position: when do you need to sign again?

The most important rule in case of a change in position mainly comes from established case law. If your position or employment relationship changes so drastically that the non-compete clause becomes “substantially more onerous”, then the clause must in principle be agreed in writing again. If that does not happen, the employer often cannot rely on the old clause anymore.

When does the clause become substantially more onerous?

There is no checklist that always works, but in practice judges often look at a combination of factors, such as:

• Drastic change in position, responsibilities or role (e.g. from executive to (commercial) leading).
• Increase in market-sensitive knowledge, strategic information or access to confidential data.
• Larger customer or work area (e.g. regional → national/international) or a broader network.
• Foreseeability: could you reasonably expect this change when you signed?
• Extra impediment: does the clause now clearly restrict you more in finding an equivalent job?

Recent examples from case law (short and practical)

• Change/addendum without reconfirmation: in some cases, the judge concludes that from the moment of change there is no (sufficient) basis anymore to invoke the old non-compete clause, for example because the new document does not clearly refer to the clause.
• Summary proceedings (suspension): in summary proceedings, the judge assesses whether it is likely that a substantive judge will limit/annul the clause (wholly or partially), and whether suspension is already justified now. This is therefore a provisional assessment, but often decisive in practice.

Practical tips for employees

• Read the clause as if you have to “live” it. What exactly is prohibited, how long, and where? Does it fit with your professional opportunities?
• Record changes in position. Save emails, new job profiles, targets, salary changes, customer portfolios and access to systems.
• In case of promotion or expansion: discuss the clause again. If your role changes essentially, it is wise to explicitly discuss whether the clause still fits.
• Consider summary proceedings in case of urgency. If you have a job in mind and the clause blocks it, suspension (wholly or partially) can be claimed.
• Non-solicitation clause is no “side issue”. A non-solicitation clause can also fall under art. 7:653 of the Dutch Civil Code and can be just as restrictive in practice (or offer an alternative if a non-compete clause goes too far).
• Prevent penalties and escalation. Seek legal advice before switching. A strategic approach (e.g. delimitation of position/customers/area) can make a big difference.

Outlook: possible legislation

There are plans to regulate the non-compete clause more strictly in the future (for example maximum duration and a (form of) mandatory compensation if the employer actually invokes the clause). At the moment, however, these are proposals/preparations and not rules that already apply automatically.

Summary

A non-compete clause does not always remain “automatically” in force if your position changes drastically. If the clause becomes substantially more onerous due to a change in position, a new written clause is often needed. In urgent situations, suspension via summary proceedings may be possible. Always have your situation assessed concretely: the outcome depends strongly on the text of the clause and your actual role.