Some workers acquire a high level of knowledge of the strategic decisions of the company of which they are part, also of the objectives, control of the client portfolio, upcoming openings, data from internal market studies, etc.,
One of the reasons that companies are most concerned about is the possibility that said worker leaves the company and takes all the information with them, either for their own use or to provide services to the competition.
In today's post we are going to try thresh, the clause -Post-contractual Non-Competition (NCP)– that companies have at their disposal so that they can limit this “leak” of “know how” even if it is for a limited time.
Now, this clause must be understood in the context that the duty to work and the right to work are constitutionally recognized and the knowledge obtained through experience forms an indivisible part of the worker's professional training (TSJ Madrid 3-21-02,)
Post-contractual Non-Competition Clause (NCP)
The NCP It is a legal figure with a slight normative reference (21.2 ET) and where the courts have been interpreting its content by establishing its limits. Specifically, the Workers' Statute, in its article 21.2, says:
“The non-competition agreement for after the termination of the employment contract, which may not last longer than two years for technicians and six months for other workers, will only be valid if the following requirements are met:
- That the businessman has an effective industrial or commercial interest in it.
- That the worker be satisfied with adequate financial compensation.
From reading the precept, we can deduce the following requirements:
- The existence of a “time frame”, depending on whether the worker in question is considered a technician or not; determination that is not trivial and that will require a framing exercise by the company, since the period may not exceed 6 months or 2 years, as the case may be.
- That the entrepreneur has an “effective industrial or commercial interest”, that is, that the entrepreneur in some way wants to prevent - all that knowledge, experience, usual practices, protocols and/or procedures that have been generated internally in the company and that have led it to be a leader in the market, to have a prominent position in the market, and thereby achieve a competitive advantage; with the achievement of great commercial, economic, financial successes, etc., - can be reproduced by the competition in an altruistic and free manner.
- As can be seen, the provision does not clarify the mathematical formula of how to economically calculate this compensation, therefore, it is the parties who must reach a reasonable amount, since this amount what really compensates is the impossibility of the worker providing services. in a competing company for a certain period of time.
This amount will depend on each worker and must be taken into account, among others: the duration of the NCP clause, the limitation of the geographical scope (local, autonomous community, state level), the degree of knowledge of the company , the worker's salary, etc. As a guide, the amount of this clause can range between 20% and 60% of the fixed gross salary.
The payment can be made (i) in advance, by paying it into the payroll, (ii) periodic payment of a lump sum (iii) at the end of the employment relationship (iv) at the beginning of the employment relationship.
It must be taken into account that, even if it is signed, if this requirement does not materialize, the agreement is null ab origine and no effectiveness can be recognized.
And what have the courts said about it?
- They have understood that the NCP clause remains in force even when a corporate subrogation occurs and said clause is not expressly extinguished (TSJ Navarra 12-29-00).
- The worker cannot unilaterally terminate the agreement, but must obtain a judicial resolution that releases him from his respective obligation (TS 9-24-90), but neither can the company, since the validity and compliance of the contracts do not. It can be left to the discretion of one of the parties (TS 3-28-19).
- For non-compliance to occur, actual damage is not necessary, the potential damage is sufficient, which is presumed when the concurrent activity is directed at the same clientele (TSJ Catalonia 6-21-00).
- It is worth highlighting the ruling of the STSJ of Madrid, of February 26, 2021, which reviews the prototypical form of drafting of these clauses, in which this compensation is mostly included within the fixed remuneration agreed with the worker. Well, said ruling establishes that, since there is no additional cost, nothing extra has been paid, so the worker who fails to comply does not have to return anything, giving the clause a salary and not compensation nature.
It is not a peaceful issue and each case will have to be studied to adjust each post-contractual non-competition clause as much as possible so that both parties are compensated.
