What is a non-competition clause?

What is a non-competition clause?

"I've not been satisfied with my job for some time now. A new opportunity has come up that I'd like to take up. It's the same job in a similar company. I've built up my client portfolio myself, thanks to both my professional and personal qualities, even though I'm aware that my employer has paid some of the costs associated with my canvassing. My contract contains a 'non-competition clause' - can these clients follow me?"

Alex, Carouge

The non-competition clause is a provision, which must be included in a written contract, whereby the employee undertakes not to compete with his former employer after the end of the employment contract, whether as a self-employed person, an employee or a partner in a competing business. This prohibition may not extend beyond the territory in which the company operates and, except in special circumstances, is valid for a maximum of three years. In addition, it cannot apply to an activity or company that is not part of the same industry as the employer. Lastly, it only makes sense if the employee concerned is in contact with customers or has access to information, such as manufacturing secrets, which could cause significant harm to the employer.

By inducing a customer to break a contract with a view to concluding another with him, the employee is in breach of the prohibition on competition. However, in some professions, the personal qualities and skills of the employee are more important than the services offered by the employer, and such a clause is unlikely to be enforced by a court. This is the case for doctors, pharmacists and lawyers, for example. It should also be borne in mind that the clause expires if the employer no longer has any real interest in maintaining it, if he terminates the contract without good cause or if the employee terminates the contract for good cause attributable to the employer. In such cases, your customers could follow you regardless of the non-competition clause.

It should also be noted that when the employee breaches such a clause, he may be asked to make good the damage, pay a contractual penalty if this is provided for, and put an end to the contravention. However, most courts will only accept this last option if the employer can demonstrate that the damage suffered is considerable and difficult to repair, and that the employee's breach of contract is very serious and contrary to good faith. This is why it is often said that non-competition clauses are difficult to enforce.