The most important facts in brief:
- In the event of dismissal by the employee, so-called self-termination, the employee must continue to have a claim for compensation.
- When the Employee gives extraordinary noticehe has the option of complying with the post-contractual non-competition clause and receiving the compensation or waiving both.
- With a ordinary termination by the employer, the employee has the choice ofThe employee can either comply with the non-competition clause and receive the compensation or not be subject to a non-competition clause but not receive any compensation.
Is there an entitlement to compensation for maternity leave if I resign?
In the event of an employee's own dismissal, i.e. an ordinary dismissal, there is an entitlement to compensation for non-competition. The background to this is that compensation for non-competition aims to compensate the employee for the period of non-competition. During this time, the employee cannot actually work. In order to be financially secure during this time, he receives the compensation for non-competition. The fact that the employee resigns does not change this.
Is the entitlement to compensation for maternity leave also valid in the event of termination by the employer?
In the event of termination by the employer, the employee generally has the right to choose whether to terminate the employment contract. Post-contractual non-competition clause and receives the compensation or waives the compensation, but does not have to comply with the post-contractual non-competition clause. The background to this is that it would be contradictory if the employer were to terminate an employee's contract but the employee was then not allowed to go to a competitor.
Whether the employee must comply with the non-competition clause, has a right of choice or even the employer has a right of choice regarding the effectiveness of the non-competition clause depends on which party terminates the employment contract and for what reason:
- Ordinary termination of the employeeThe employee is entitled to the compensation for waiting time. If an employment relationship has been terminated by the ordinary termination of an employee, it is effective provided the other conditions for effectiveness are met.
- Extraordinary dismissal of the employeeIf the employee gives extraordinary notice of termination, for example due to a breach of duty by the employer, the employee has the right to choose whether to comply with the non-competition clause and receive compensation or to ignore the non-competition clause, but will not receive any compensation.
- Ordinary termination by the employerIf the employer terminates the employment contract, the employee has the right to choose between complying with the non-competition clause and receiving compensation or ignoring the non-competition clause and not receiving compensation. Exceptionally, this right to choose does not exist if the employer terminates the contract for reasons that lie in the person of the employee (e.g. termination for conduct-related reasons). In such a case, the employer has the right to choose whether the non-competition clause remains in place and the employee receives compensation or not.
- Extraordinary termination by the employerIf the employer terminates the contract for cause, the employer can also choose whether the non-competition clause should remain in place.
If a termination is invalid, the post-contractual non-competition clause does not apply. Instead, the general non-competition clause applies, which applies to valid employment contracts.