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.