What are the obstacles to starting a business while being an employee? Part 2
The employee who does not respect his exclusivity clause violates his contractual obligation. As such, it may be sanctioned by dismissal for misconduct, which in certain cases can be qualified as serious misconduct, in which case the employee may not claim either the termination indemnity or the compensation for notice. Only paid leave not taken will be paid.
B- Obstacles after the termination of the employment relationship
Considered at the time of the conclusion of the employment contract, the non-competition clause, which also limits the exercise of professional activity, takes effect after the termination of the employment relationship. Such a clause is only valid if it meets the following conditions:
– be essential for the protection of the interests of the company;
– take into account the specificities of the employee’s job (possibility for the employee to find a job corresponding to his qualification);
– be limited in time (duration of its application) and in space (geographical area concerned);
– be accompanied by the employee by a financial contribution.
The non-competition clause which does not meet these conditions will be declared void by the court and therefore releases the employee from his obligation.
An employee who violates the non-competition clause loses his right to financial compensation.
In addition, the employment contract may include a penalty clause in the non-competition clause, which is a lump sum indemnity that the employee must pay to the employer.
Finally, the judge can order the employee to cease his activity.