Non-competition clause – Employment contract

When an employer includes a non-competition clause in an employee’s employment contract, it must be ensured that the clause allows the employer to unilaterally waive the clause, subject to a period of notice.

Recently, the Cour de Cassation considered that if the employer unilaterally waives the non-competition clause inserted in the employment contract but the employee objects, the financial consideration provided for in the non-competition clause is due… (Cass. Soc. March 29, 2017, n°15-27.078).

In other words, if the non-competition clause does not provide for unilateral termination by the employee, the employer must obtain the employee’s agreement to waive it. If the employee refuses the waiver, the indemnity provided for in the clause is payable.

If no financial compensation is specified, the employee may claim damages.

The French Supreme Court has ruled that the employer cannot impose a waiver of the non-competition clause without the employee’s agreement.

Be careful when drafting your non-competition clause. Article written by Maître Ingrid Desrumaux, Avocat au Barreau de Bordeaux, Droit Social et Droit des Affaires – Updated on April 21, 2017