Amendment of the loyalty clause only by mutual agreement of the parties

Publication / 29.01.2018

An employer may enter into a post-employment non-compete agreement with an employee who has access to particularly relevant data, the disclosure of which could expose the company for losses. The prohibition may apply only to those who have access to the employer’s material and confidential information, which should not get to the knowledge of outsiders, as this could cause damage to the employer.

A non-competition agreement must be in writing under pain of nullity. Its amendment requires the same form. In the wording of the loyalty agreement, the employee agrees not to engage in any activity that competes with the employer or to provide work under an employment or other legal relationship to an entity that competes with the employer for a specified period after the termination of employment. The parties must also specify the amount of compensation to which the subordinate is entitled. A non-competition agreement after termination of employment is not part of the employment contract, so non-competition is not included in the concept of terms of the employment contract.

Amending notice constitutes an unilateral act of the employer aimed at changing the terms and conditions of employment. Since the post-employment non-compete agreement is not an element of the employment contract, but a separate contract, the institution of amending notice cannot be applied to it.

As a general rule, to amend the provisions of a non-competition agreement, the consent of both parties to the agreement expressed in writing is required. Only in exceptional situations is it possible to unilaterally terminate the terms of this agreement. Such an option would have to be provided for in the provisions of the agreement itself.