• Mette Marie Klintebjerg Jørgensen
Abstract in English

The purpose of this thesis has been to analyse the employment law concept of employ-ment clauses and which employees who are affected by these restrictions. The aim of this analysis has been to determinate what the employment law of employment clauses covers. Especially, two issues have been the center of attention in the proses of answering the formulation of the problem.
1)The first approach, which must be determined, is the type of employment clauses. Is it a competition-, customer-, job- or combined clause, or maybe a loyalty clause? In this thesis the focus will be on the competition- and customer clauses, as well as the loyalty clause.
2)And second, which rule of law is relevant in the presented situations.
The tree types of employment clauses will be examined separately based on a distinction between the legal law and the type of employee. The overall subject of the thesis is the concept of employment clauses, but it will be based on the concept of the loyalty obliga-tions of an employee within business relationship. The theme throughout the thesis will be to determined the limitations of the employee’s based on the competition- and the cus-tomer clauses, furthermore the limitations of the clauses will be analysed in relation to the limitations of the loyalty obligations of an employee. Because of the fact that the concept of “the duty of loyalty” is a non-statutory concept it can’t be find in the law, and therefor the analysis on the concept of “the duty of loyalty” will be based on the cases we see in court. The analyses on both the competition- and the customer clauses will be based on the legal law, the literature and cases from court.

In connection with the above-mentioned issues, the formulation of the problem of this thesis is as follows, the limitation of competition clauses, competition- and customer clauses, as well as the loyalty obligations of an employee.

The answer to the problem of the thesis is as follows. There are tree types of competition restriction agreements or clauses, the competition- customer- and loyalty clauses. A clause is a written agreement between an employee and an employer. Prior to an agreement on a valid clause, certain fundamental conditions must be fulfilled.
The main condition of a competition clause is the requirement for the employee to possess a specially trusted position. The aim of a clause has to be in written form and it must contain an agreement on the compensation cf. AKL §5, par. 1, no. 1-6. The condi-tions of a customer clause are the same as for the competition clauses with the exception of the requirement for an employee in a specially trusted position cf. AKL §6, par. 1, no. 1-5. When to consider whether an employee possesses a specially trusted position or not, the basis of the cases must be judge on the individually facts in each cases. What is, and will remain, important is the protection of the employer and the company. In many cases, facts like the size of the company, customer contact, the employees knowledge of prices and there ability to distribute discount codes, as well as the competences and independ-ence in there performance is the reason for an employee to process the title as a special trusted person. In addition to the mentioned competition- and customer clauses, there is also the loyalty clause. The conditions for the loyalty clause are few, as all employees are covered by the general duty of loyalty to their employer and the company they work for. Therefore the loyalty clause does not require a number of conditions to be valid.

In the absence of an agreement between the employee and the employer on a competi-tion- and/or customer clause, the employee is entitled to enter in a competing business and/or contact the customer of the former employer.

Occasionally it’s difficult to distinguish between the competition- and customer clauses, as they sometimes resemble each other. The competition clause prevents the employees from working in or run a competing company for a certain period of time. Whereas the customer clause is a protection of the employer as it prevents the employee to work for or otherwise serve the former employers customers in a certain period of time. In cases in court the focus is on the actual content of a clause and not on its designation.

The final conclusion on this thesis and on the tree clauses is therefore as follows. The clauses are a protection of the employer and the business, but through this protection a rather substantial restriction is created affecting the employee. Not being able to take on work in a competing company can be a significant limitation for the employee who wants to continue to pursue a career within the same industry. By limiting the extent of the clauses the employee will be able to move on to other business opportunities after an ended employment agreement.
Publication date15 Dec 2019
Number of pages43
ID: 317266112