The most important facts in brief:
- If the employer resigns or the employee resigns due to a breach of duty by the employer, the post-contractual non-competition clause can be unilaterally revoked.
- The employer can waive the post-contractual non-competition clause before the end of the employment contract.
- The waiver or revocation should be declared clearly and in writing.
Can a post-contractual non-compete clause be revoked?
The employee and the employer can Post-contractual non-competition clause together at any time.
There are also several constellations in which either the employer or the employee can unilaterally remove the post-contractual non-competition clause:
- Extraordinary termination by employeeIf the employee terminates the employment contract for cause because the employer has committed a breach of duty, the employee can unilaterally terminate the post-contractual non-competition clause.
- Extraordinary termination by employerIf the employer terminates the employment contract for cause due to a breach of duty by the employee, the employer has the option of unilaterally terminating the subsequent non-competition clause (analogous to Section 75 (1) HGB).
- Ordinary termination by the employerIf the employer terminates the employment contract with notice, the employee has the right to unilaterally terminate the post-contractual non-competition clause. Exceptionally, the employee does not have this right if the reason for the termination lies in the person of the employee or if the employer is already paying the full salary during the non-compete period.
The unilateral option to terminate the post-contractual non-compete clause also exists in situations that are very similar to the terminations described above:
- Cancellation agreementIf a termination agreement is concluded because the employer would otherwise have terminated the contract with due notice, the employee also has the option of unilaterally terminating the post-contractual non-competition clause.
- Fixed-term contractIn the case of a fixed-term contract that expires and contains a post-contractual non-competition clause, the employee also has the option of unilaterally revoking the post-contractual non-competition clause.
If the post-contractual non-competition clause is to be revoked unilaterally, the following procedure is required:
- In writingThe declaration must be made in writing.
- DeadlineThe declaration of termination must be submitted within one month of the termination.
- ContentsThe declaration must state that the person does not feel bound by the declaration. No specific wording is required for this.
Can the post-contractual non-competition clause be waived?
The Employer has the option of waiving the post-contractual non-competition clause. The difference to termination is that the employer waives the post-contractual non-competition clause in advance, regardless of the reason for termination.
- TimeThe possibility to declare a waiver exists at any time, § 75a HGB. However, the waiver can only be declared before termination of the contract. However, this also means that it is possible to declare the waiver after the declaration of termination but before the end of the contract.
- No non-competition clauseThe waiver of the post-contractual non-competition clause has the consequence that the employee or Managing Director is not subject to a non-competition clause from the end of the contract.
- CompensationThe employer is released from the obligation to pay compensation one year after the declaration of waiver. If an employer waives the non-competition clause on 2.1.2024 and then gives notice of termination on 30.6.2024, the employer is entitled to compensation for 6 months (from 1.7. to 1.1.2025). Only from the beginning of 2025 does the one year since the waiver end, so that the exemption from the obligation to pay compensation only applies from this point in time.
- IrrevocableThe waiver of the non-competition clause is irrevocable.
- Exception: In exceptional cases, it may be inadmissible to waive the post-contractual non-compete clause. If, for example, the employer has given the employee the impression that they do not wish to waive the non-competition clause and the employee has relied on this statement, the waiver may be inadmissible.
So if you as an employer do not wish to pay compensation, you should declare your waiver one year before the contract is due to end.
If you wish to waive the post-contractual non-competition clause, you should consider the following aspects:
- Before terminationYou can still declare the waiver after termination, but only before the contract ends!
- Clear formulationFormulate the waiver unambiguously, otherwise it may be ineffective.
- ShapeThe waiver of the post-contractual non-competition clause must be declared in writing or electronically with a qualified signature.
Is it possible to terminate the post-contractual non-compete clause?
After the end of the employment contract, it is only possible to terminate the post-contractual non-competition clause in exceptional cases. It is only possible to withdraw from the post-contractual non-competition clause in the event of a serious breach of duty that would justify extraordinary termination.