When do we speak of violation in the non-recruitment clause?

Employers increasingly choose to have a non-recruitment clause included in employment contracts. This means that an employee is prohibited from inducing other employees to leave the employer (“recruiting” or “poaching”) for example to set up a new similar company. Sometimes there is a thin line between admissible contact with former colleagues and unlawful poaching. Dutch employment lawyer Sander Schouten explains, based on a recent case.

Recruitment prohibition in Dutch employment contract

In this case the employment contract of the respondent included the following stipulation:
“The employee is not allowed, during the employment or 1 year thereafter, directly or indirectly, both for himself or for third parties, to approach the employer’s employees [….] to induce them to terminate the employment with the employer.”

Departure former colleague violation non-recruitment clause?

After the employment between the employee and the employer, DTG, the respondent was employed by Catawiki. Some months later a former colleague of the respondent stated that he wanted to leave DTG and also start working for Catawiki. According to DTG this meant that the respondent had violated the non-recruitment clause. DTG took the respondent to court and claimed the contractual penalty of over €20,000.

Subdistrict court: no violation of prohibition

However, things are not always so clear-cut. According to the subdistrict court the clause was not violated. The text of the clause assumes that the initiative of approaching the employer’s employees, directly or indirectly, to induce them to leave the employer, should be with the employee, in this case the respondent.

Respondent did not take the initiative for contact

However, in this case the colleague himself contacted the respondent by telephone. The colleague asked about the possibilities to apply for a job at Catawiki. The respondent then referred him to the HR department. An HR employee then proactively contracted the colleague on LinkedIn. The respondent was not involved in the resulting job interview and the job offer to the colleague.

Court: referral to recruiter is not a violation

According to the subdistrict court, the sole circumstance that the respondent informed the employee of the Catawiki HR department that his former colleague could approach her because he was interested in Catawiki was insufficient to conclude that the respondent violated the non-recruitment clause. The court also took into account that the former colleague was already familiar with Catawiki and that the respondent was not involved in the selection process and the eventual decision to employ the former colleague.

AMS Advocaten specialised in labour law

A non-recruitment clause is aligned with a non-competition clause and a non-solicitation clause. These clauses offer employers some protection against competing activities of former employees. Whereas the non-competition and non-solicitation clauses limit the activities that an employee can conduct and his approaching of business contacts, the non-recruitment clause is aimed at preventing an ‘exodus’ from a company (or department) if a certain employee leaves.