To have a non-compete clause removed from a settlement agreement, you generally have a few options: Negotiate directly with the other party: The most straightforward way is to try and negotiate an amendment to the settlement agreement. You'll need to present a strong case as to why the clause should be removed or modified. This might involve highlighting any unforeseen difficulties the clause is causing, or suggesting a compromise. Seek legal advice: It is highly recommended that you consult with a solicitor specialising in employment law or contract law. They can advise you on the enforceability of the non-compete clause in your specific jurisdiction and under the terms of your agreement. They can also help you draft a formal request to the other party and represent you in negotiations. Apply to the court (in certain circumstances): In some jurisdictions, you may be able to apply to a court to have a non-compete clause declared unenforceable, especially if it is considered overly broad, unreasonable, or against public policy. However, this is usually a last resort and can be costly and time-consuming. Factors that influence removal: Enforceability of the clause: Non-compete clauses are often scrutinised by courts. For a clause to be enforceable, it generally needs to protect a legitimate business interest (like confidential information or client relationships), be no wider than necessary to protect that interest, and be reasonable in terms of duration, geographical scope, and the activities it restricts. If the clause is too broad or unreasonable, it may be easier to have removed. The terms of the settlement agreement: Review the agreement carefully for any clauses related to amendments or variations. Your bargaining power: Your leverage in negotiations will depend on your circumstances and the impact the non-compete clause is having on your ability to earn a living or pursue business opportunities. Jurisdiction: Laws regarding non-compete clauses vary significantly by country and even by state or region within a country. Steps to consider: 1. Understand the clause: Make sure you fully understand what the non-compete clause prohibits you from doing, for how long, and in what geographical area. 2. Gather evidence: If you believe the clause is unreasonable or causing undue hardship, gather evidence to support your case. 3. Consult a solicitor: This is a crucial step. An experienced lawyer can assess the situation and advise on the best course of action. 4. Formal request: If advised by your solicitor, draft a formal request to the other party to remove or amend the clause, outlining your reasons. 5. Negotiate: Be prepared to negotiate and potentially compromise. Remember, settlement agreements are legally binding contracts, so any changes must be formally agreed upon by all parties involved.

Having a non-competition clause removed from your settlement agreement

Would you like to have the non-competition clause removed from your settlement agreement? Below you can read how to negotiate this and what to look out for.

Does your employment contract contain a non-compete clause and have you been presented with a settlement agreement? If so, it is important not to simply leave that clause in place. A non-compete clause can significantly restrict your freedom on the labour market, but the good news is that in many cases you can negotiate over it effectively. Particularly when you are already leaving, there is often more room to manoeuvre than you might think.

What is a non-compete clause and when does it apply

A concurrentiebeding legt vast dat je na het einde van je dienstverband niet zomaar bij een concurrerende werkgever aan de slag mag, of een eigen onderneming in dezelfde branche mag starten. Het beding geldt voor een bepaalde periode en heeft vaak ook een geografische begrenzing.

In legal terms, the non-compete clause is governed by Article 7:653 of the Dutch Civil Code. The law sets out clear requirements: the clause must have been agreed in writing with an employee who is of legal age. For an open-ended employment contract, that is the basic rule. For a fixed-term contract, the bar is higher: the employer must then set out in writing that there is a compelling business or operational interest. If that justification is absent, the clause is in principle not valid.

In addition, Article 7:653(4) of the Dutch Civil Code provides that the employer cannot derive any rights from the non-compete clause if the termination of the employment contract is the result of seriously culpable conduct on the part of the employer itself. Think of bullying, discrimination, or systematic breach of the duty of care.

What can happen to your non-compete clause in a settlement agreement

In a settlement agreement (vaststellingsovereenkomst), you and your employer jointly make arrangements regarding the termination of the employment. This also offers the opportunity to have the non-compete clause explicitly lapse. If you agree on this, it is recorded in the agreement itself — and you are fully released from it.

There are, however, two pitfalls to watch out for:

• Finale kwijting: Almost every settlement agreement contains a full and final release clause. If the agreement says nothing about the non-compete clause, uncertainty can arise as to whether the clause lapses by virtue of that release or continues to apply. If you want certainty, make sure the settlement agreement explicitly states that the non-compete clause lapses.
• Nieuw beding in de VSO: Some employers attempt to reintroduce a non-compete clause that was already invalid into the settlement agreement. If you sign this without objection, the court may rule that you have agreed to the clause afresh — even if it was invalid beforehand.

Never be caught out by the small print, therefore, and always review the settlement agreement carefully before you sign. You can read more about what a good agreement should contain on the relevant page. settlement agreement.

Negotiating the non-compete clause

In practice, employers are regularly willing to cooperate in removing or limiting the non-compete clause. They want your signature on the settlement agreement, and that gives you, as an employee, room to negotiate. Particularly if the employer took the initiative to proceed with dismissal, the clause is quickly under legal pressure.

The most common outcomes in negotiations are:

• Volledig schrappen: The clause lapses entirely, leaving you completely free in your choice of new employer or in starting your own business.
• Looptijd verkorten: Instead of one or two years, the clause is reduced to, for example, three or six months.
• Geografisch beperken: The clause applies only to a specific region, for example a radius around your employer's place of business.
• Converting to a non-solicitation clause: You may then work for a competitor, but you are not permitted to actively approach clients or contacts of your previous employer within a certain period.

Which option suits you best depends on your role, sector and the concrete plans you have. Make sure you seek proper advice on this.

When is a clause legally contestable

In addition to negotiating, there are situations in which a non-compete clause is also legally weak or even voidable. The court may wholly or partially void a non-compete clause on the basis of Article 7:653(3)(b) of the Dutch Civil Code if, as an employee, you are unfairly disadvantaged by the clause in proportion to the employer's interest being protected. That assessment is always tailored to the individual case.

Situations in which the clause is particularly vulnerable:

• The clause appears in a fixed-term contract without a written statement of a compelling business interest.
• Your employer has themselves given you cause to terminate the employment relationship (seriously culpable conduct).
• Your role changed significantly during the employment relationship without the clause being agreed afresh.
• The duration or geographical scope of the clause is disproportionate in relation to your work.

New legislation is on the way

The government is working on a modernisation of the rules surrounding non-compete clauses. The draft legislation introduces, among other things, a maximum duration of one year after the end of the employment relationship, an obligation for the employer to state the geographical scope, and a duty to provide reasons for all employment contracts — not only fixed-term ones. In addition, when invoking the clause the employer must pay compensation of 50% of the last monthly salary for each month the clause applies. The precise date on which these changes will take effect had not been definitively established at the time of writing; the House of Representatives and the Senate must first pass the proposal. Keep an eye on official government channels for the most up-to-date position.

Why Employment Lawyer Eindhoven

At Arbeidsjurist Eindhoven we know exactly how to strengthen your position in negotiations. Whether it concerns having a non-compete clause removed entirely, limiting its duration or legally testing its validity: we always look at your specific situation and help you forward step by step. Employees from Eindhoven and the rest of Brabant are in good hands with us. Get in touch without obligation and find out what is possible for you.

Frequently asked questions

Does my non-compete clause automatically lapse when I sign a settlement agreement?

No, that is a common misconception. A non-compete clause does not automatically lapse upon signing a settlement agreement. If you want to be certain that the clause no longer applies, this must be explicitly included in the settlement agreement. If the settlement agreement contains nothing about the non-compete clause, disputes may arise at a later stage as to whether or not the clause has lapsed.

Can my employer include a non-compete clause in the settlement agreement that was not there before?

Yes, an employer can attempt to do so. If you sign the settlement agreement containing that new clause without raising any objection, the court may find that you have agreed to the clause afresh. You should therefore pay close attention to this and always review the draft text carefully, preferably with legal assistance, before signing.

Is my non-compete clause valid if I had a fixed-term contract?

Not automatically. For a fixed-term contract, the employer is required to set out in writing in the employment contract why there is a compelling business or service interest that justifies the clause. If that justification is absent, the clause is in principle invalid. Always have this checked by an employment lawyer.

What if negotiating over the non-compete clause leads nowhere?

If you cannot reach an agreement, you have a few options. You can refuse to sign the settlement agreement, after which your employer will have to pursue dismissal either through UWV or through the subdistrict court. Alternatively, you can sign the settlement agreement and later, if your employer actually invokes the clause, ask the court to annul or limit it on the grounds of unfair prejudice. You should seek advice on this, as the best strategy depends heavily on your personal circumstances.

What will change under the new legislation on non-compete clauses?

The legislative proposal on the Modernisation of Non-Compete Clauses introduces a maximum duration of one year, an obligation to specify the geographical area, a requirement to give reasons for all contracts (not only fixed-term ones), and an obligation to pay compensation of 50% of the monthly salary for each month the clause remains in force. The exact date of entry into force has not yet been confirmed; the legislation must first be passed by both Houses of Parliament.

We are happy to think along with you. For advice tailored to your situation, we would be glad to talk. No rights can be derived from the content of this page and it may contain inaccuracies.