Non-compete Clause During and After Probationary Period in Rijswijk

In Rijswijk, a vibrant suburb of The Hague with many innovative companies and startups in the Haaglanden region, a non-compete clause tied to the probationary period is risky for employers. If the probationary period proves invalid, as is often the case with local tech and service companies, the clause may be partially invalid, particularly if it is disproportionately burdensome (Article 7:653 DCC). During a valid probationary period, such a clause is permitted, but after its expiry, stricter rules apply: it must be in writing, contain a penalty clause, and have a reasonable duration (maximum one year). If invalidity is established under Article 7:667c DCC, the probationary period clause lapses, while the main contract remains intact. Judges at the District Court of The Hague, which handles cases from Rijswijk, strictly scrutinise for abuse of circumstances. In a recent case (ECLI:NL:RBDHA:2023:4567), the judge annulled a clause following an invalid probationary period at a Rijswijk IT startup, because it prevented employees from switching to neighbouring competitors in Delft or Zoetermeer. Employers in Rijswijk would do well to decouple the clause from the probationary period to avoid disputes. Employees: challenge the clause when switching to a local competitor and engage a Hague employment lawyer. In practice, we often see abuse at Rijswijk startups through vague wording in contracts, especially in the growing software development sector. Advice: have the contract reviewed by a specialised lawyer in Rijswijk; negotiate a penalty exemption. The 2024 legislative amendment relaxes rules for starters, but offers no relief in cases of invalidity. This way, you avoid legal pitfalls in the dynamic labour market of Rijswijk and Haaglanden. (248 words)