Post -contractual competition ban and preliminary contract
Not every pointed speed works. Despite the (contractual) obligation of the employee to conclude a post -contractual competition ban at the request of the employer after declaring a termination of the employment contract through a party or conclusion of a termination agreement, the employer must not trust in holding a binding ban on competition in the event of an emergency. Rather, there is only a non -binding ban on competition! Rather, the employee has the choice between freedom of competition without childcare or competition with the conditions of the preliminary contract ( BAG, judgment of December 19, 2018 - 10 AZR 130/18 ).
Tip
The practitioner must know the subtleties of the temporal limit in the design of preliminary contracts in connection with post -contractual competition bans.
Today, companies not only compete for customers and competitive advantages, but also for qualified employees. The risk of emigration from key forces and know-how providers is latent. Protection against switching to the competition often offers a post -contractual ban on competition. Before this is designed, however, it must be weighed up whether the associated packaging compensation is at all a sufficient economic benefit.
The agreement of a post-contractual ban on competition is only useful for employees who actually hold a position in which you experience company secrets or have know-how that is of great importance for competitors of the employer. If the employer initially wants to wait for the development of the employee as a know-how bearer and thus a possible interest in the protection of competition, the conclusion of a preliminary contract is a tried and tested and (for the time being) inexpensive means. Now the employer only has to observe the current case law of the BAG and should critically examine the contract pattern for topicality. Talk to us!
In any case, nothing is worse than a pattern without (legal) value.
