What was in summary the case?
Recruiter violates ancillary work clause while exempt from work for client employer. Fine mitigated to nil; employee immediately terminated contact after learning of employer’s objections.
Employee joined De Recruiter B.V. as a senior consultant on September 1, 2018. The employment contract contains an ancillary work clause, a relationship clause and a related penalty clause. On October 27, 2020, the parties entered into a written termination agreement at the request of the employee. The employment agreement would thereby end on January 31, 2021. Her last day of work was October 30, 2020, after which she was released from work with pay. On 27 October 2020, the director of The Recruiter drew up a list of relations in respect of which The Recruiter did not wish to deviate from the relationship clause. Some of the relationships were allowed to be approached by the employee. By email dated November 11, 2020, the Director informed the employee that he had heard that the employee had been in contact with a business contact regarding a vacancy she had previously been in contact with from De Recruiter. He informed employee that this was not the intention and that as long as she was still employed, she had to comply with the relationship clause. The Recruiter claimed a declaratory judgment that the employee had acted in breach of the secondary employment clause and the non-solicitation clause, and an order that the employee pay the penalties due, totalling €17,000 for the first breach and €10,000 for the second breach, plus €500 for each day that the second breach continues, plus statutory interest. The employee claimed a declaratory judgment that the restriction of the relationship clause applied in full.
In November 2020 the employee had contact with the relation about a vacancy and via the LinkedIn of The Recruiter she placed a search request for this vacancy. Strictly speaking this falls under the side activities clause. The Subdistrict Court considers the penalty claimed for this excessive. The following is relevant in this respect. The Recruiter knew that the employee was doing some work for herself. The Recruiter mainly blamed her for carrying out work for the client. However, the relation is one of the relations of which The Recruiter had determined that it would not fall under the non-solicitation clause, insofar as it would concern recruitment for Sales, Marketing, HR and Finance vacancies. Moreover, the employee terminated her contact with the relation immediately after she learned of De Recruiter’s objections. Finally, De Recruiter has not made it plausible that it has suffered damage as a result of the actions of the employee. The assignment of the relationship did not go to employee. On the grounds of the foregoing, the Subdistrict Court moderates the penalty to nil.
Employee established a personal holding company on November 16, 2020, at the time of her employment. The Recruiter argues that through that holding company the employee entered into a business agreement with D, a relation of The Recruiter. The employee disputes this. The question that the Subdistrict Court must answer is whether D must be considered a client or ‘other relation’ of De Recruiter. It was neither stated nor apparent that D ever purchased goods or services from De Recruiter or placed orders with her. D’s managing director has stated in writing that she does not know De Recruiter and that De Recruiter has never worked for D. D is therefore not to be considered a relation or client. The conclusion is therefore that the employee has not breached the non-solicitation clause.
Questions about non solicitation, non competition, secrecy or penalty claus or dismissal please contact Eva Jongepier, lawyer at Fennek.