Employees fre­quently move to com­pe­ting com­pa­nies for a variety of rea­sons. In this con­text, it is often said that non-com­pe­ti­tion clau­ses are inad­mis­si­ble or “not enfor­ce­able any­way”. Howe­ver, this asser­tion does not apply in this abso­lute form. The pos­si­bi­lity to agree on a post-con­trac­tual non-com­pe­ti­tion clause is even pro­vi­ded for by law (Art. 340 et seq. SCO).

Vali­dity and effec­ti­ve­ness of a non-com­pe­ti­tion clause
In order to con­clude a valid agree­ment on a non-com­pe­ti­tion clause, it only needs to be in wri­ting. Howe­ver, the non-com­pe­ti­tion clause is only effec­tive if the employ­ment rela­ti­ons­hip gives the employee insight into the cli­en­tele or into busi­ness secrets and if the use of this know­ledge could signi­fi­cantly harm the employer (Art. 340 para. 2 SCO). A merely minor pos­si­bi­lity of harm thus pre­clu­des the effec­ti­ve­ness of the non-com­pe­ti­tion clause.

Can­ce­la­tion of the post-con­trac­tual non-com­pe­ti­tion clause
The post-con­trac­tual non-com­pe­ti­tion clause is can­cel­led if the employer gives notice to the employee without the employee having given the employer cause to do so or if the employee gives notice because the employer gave him rea­son­able cause to do so (Art. 340c para. 2 SCO). Rea­son­able cause wit­hin the mea­ning of Art. 340c para. 2 SCO is any event attri­bu­ta­ble to the other party that may give sub­stan­tial cause for ter­mi­na­tion. The exis­tence of an actual bre­ach of con­tract is not necessary. The obsta­cle of just cause is less signi­fi­cant than that of good cause wit­hin the mea­ning of Art. 337 SCO.

Limi­ta­tion accord­ing to place, time and sub­ject matter

Accord­ing to Art. 340a para. 1 SCO, a non-com­pe­ti­tion clause must be limi­ted in terms of place, time and sub­ject mat­ter. Howe­ver, if a non-com­pe­ti­tion clause pro­ves to be exces­sive, the non-com­pe­ti­tion clause is not sim­ply dis­re­gar­ded. Rather, the judge may limit the non-com­pe­ti­tion clause at his dis­cre­tion, which often also leads to a reduc­tion of the agreed con­trac­tual penalty.

The principle is that the local limi­ta­tion of the non-com­pe­ti­tion clause should refer to the geo­gra­phi­cal area in which the employer’s cli­en­tele is loca­ted, alt­hough excep­ti­ons are pos­si­ble. The more spe­cia­li­sed a busi­ness is, the grea­ter the local exten­sion of the non-com­pe­ti­tion clause may be. In terms of sub­ject mat­ter, “any com­pe­ti­tive acti­vity” may be pro­hi­bi­ted. In terms of time, the non-com­pe­ti­tion clause may not last lon­ger than three years, wher­eby the maxi­mum dura­tion may only be excee­ded under spe­cial cir­cum­s­tan­ces (cf. Art. 340a para. 1 SCO). Howe­ver, this does not mean that shor­ter pro­hi­bi­ti­ons or pro­hi­bi­ti­ons of three years should always be qua­li­fied as rea­son­able. The decisive fac­tor for the appro­priate dura­tion of the pro­hi­bi­tion is, among other things, the type of know­ledge to be pro­tec­ted. Manu­fac­tu­ring and trade secrets fre­quently jus­tify a lon­ger dura­tion than the mere insight into a cus­to­mer base. Accord­in­gly, the Federal Supreme Court redu­ced the non-com­pe­ti­tion clause of a sales repre­sen­ta­tive with insight into the cli­en­tele from three years to six months.

Hardly enfor­ce­able real execution
Real exe­cu­tion is not about the pay­ment of a con­trac­tual penalty in the case of a bre­ach of a non-com­pe­ti­tion clause — by far the most fre­quent case — but about the judi­cial pro­hi­bi­tion of working for the com­pe­ti­tor. For this, a num­ber of pre­re­qui­si­tes must be ful­fil­led. Real exe­cu­tion must be expli­ci­tly men­tio­ned in the actual non-com­pe­ti­tion clause. Fur­ther­more, it is requi­red that the inte­rests of the employer are unre­a­son­ably vio­la­ted or end­an­ge­red and that the employee has beha­ved in an extra­or­di­na­rily dis­loyal man­ner. Since the nega­tive con­se­quen­ces for the employee if the app­li­ca­tion for real enfor­ce­ment is appro­ved can be very serious, real exe­cu­tion is only gran­ted in rare cases.

Prac­ti­cal tips
Suf­fi­ci­ent grounds for the can­cel­la­tion of the non-com­pe­ti­tion clause are, for example, per­ma­nent over­load and exces­sive assign­ments due to a lack of staff for which the employer is respon­si­ble, a tense working atmo­s­phere and uni­la­te­ral chan­ges in the allo­ca­tion of ter­ri­to­ries and cus­to­mers by the employer, late pay­ment of wages, con­ti­nua­tion of short-time work bey­ond the appro­ved period, etc. It is advi­s­able to docu­ment and com­p­lain about such grie­van­ces, because they can be used in the event of a dis­pute to prove that the non-com­pe­ti­tion clause no lon­ger app­lies. Howe­ver, if such rea­sons exist, it is not advi­s­able to wait too long before ter­mi­na­ting the employ­ment con­tract, because other­wise there is no tem­po­ral con­nec­tion bet­ween the cause and the termination.