FAQ

AN EMPLOYMENT CONTRACT CANNOT CONTAIN ANY TYPE OF CLAUSE!

Given the flourishing nature of its development, Company Y wishes to hire a large number of employees to meet the increased demands of its customers, and wonders whether certain clauses are prohibited by the Labour Code or whether contractual freedom allows it to insert all the clauses of its choice.

➣ SOME CLAUSES CANNOT BE INCORPORATED INTO THE LABOUR CODE:

• Clause instituting a financial penalty: the employer cannot impose fines or financial penalties.

• Clause which would place the burden on the employee of paying employer contributions social security.

• Clause attributing jurisdiction and arbitration clause: a clause which would provide in advance for the competence of a specific Labour Court would be void as would the clause which would allow the dispute to be submitted to an arbitrator.

• Clause for termination of the employment contract: an employment contract cannot contain a clause providing for automatic termination of the contract for any given fact.

• Clause prohibiting recourse to strike action: the right to strike is a constitutionally recognised right and recourse to strike action cannot be prohibited by the employer.

• Clause which would allow the employer to unilaterally modify an element of the contract modification of an element of the employment contract can only be made with the express agreement of the employee.

THE NON-COMPETITION CLAUSE: CAUTION AND RIGOUR!

Company Y is developing its activity in a very specialised field and does not want employees who have acquired all the necessary know-how and knowledge to decide one day to leave the company to compete in a very specific field.
She wonders how she should draft a non-competition clause because she knows that this type of clause is the source of many disputes.

A clause of non-competition inserted in an employment contract prohibited to the employee, to carry out a professional activity competing with that of his employer once his employment contract has been terminated. Four cumulative conditions must be met for the non-competition clause to be considered valid:
- be necessary with regard to the protection of the legitimate interests of the company (depending in particular on the knowledge acquired by the employee during the course of his/her professional activity);
- be limited in time and space: if the geographical delimitation is not specified, the clause may be cancelled;
- take into account the specificities of the employee's job ;
– include an obligation for the employer to pay the employee a financial counterpart
➣ Consequences in the event of damage suffered as a result of the unlawfulness of the clause, which he manages to prove, the employee may obtain damages and interest..

THE EXCLUSIVITY CLAUSE IN THE EMPLOYMENT CONTRACT

In order to strengthen the loyalty of its employees, Company X now intends to include an exclusivity clause in its contracts.

Is the exclusivity clause legal?

The employer may include an exclusivity clause in the employment contract which prohibits the employee from engaging in another professional activity, even if this other activity is not in competition.
The exclusivity clause is applied during the performance of the employment contract and not after the termination of the employment contract (unlike the non-competition clause).

CAUTION: the exclusivity clause can only be inserted in a full-time employment contract, but remains prohibited in a part-time contract.

➣ EMPLOYEES SETTING UP OR TAKING OVER A BUSINESS

The Labour Code specifies that the employer may not impose any exclusivity clause for a period of one year on an employee who sets up or takes over a business, even if there is a contractual or conventional stipulation to the contrary.

When drawing up an employment contract, you need to be accompanied by an expert lawyer to avoid any disputes during the performance of the employment contract.