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.