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Non-compete clause during and after probationary period

Non-compete clause with invalid probationary period often invalid. Reasonableness test; courts annul in case of abuse. Decouple from probationary period for validity.

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A non-compete clause linked to the probationary period is risky. If the probationary period is void, the clause may become partially invalid, especially if it is disproportionately burdensome (Article 7:653 DCC). During a valid probationary period, a clause is permitted, but after its expiry, stricter requirements apply: in writing, penalty clause and reasonable duration (max. one year). In case of nullity via Article 7:667c DCC, the probationary period clause lapses, but the main contract remains. Courts review for abuse, as in ECLI:NL:RBROT:2022:789 where a clause after an invalid probationary period was annulled. Employers must decouple the clause from the probationary period. Employees: challenge upon switching to a competitor. Practice: in startups often abuse through vague wording. Advice: have it assessed by a lawyer; negotiate penalty exemption. Legislative amendment 2024 relaxes for starters, but not in case of nullity. This prevents legal pitfalls in labour mobility. (201 words)