Compensation claim in the event of conditional post-contractual non-compete clauses
If in an employment contract the employee undertakes to conclude a post-contractual non-compete clause upon the employer’s request at a later, undefined date, a conditional non-compete clause will arise. Following resignation, the employee may refrain from competitive activity and claim compensation for non-competition in respect of this – even if the employer never calls for the conclusion of the non-compete clause.
According to the Federal Employment Court, the clause is invalid because it gives the employer the liberty to choose. However, the employer will only require a non-compete clause if the employee moves to a competitor. The only option left for the employer, therefore, is to waive the claim to the post-contractual non-compete obligation (§ 75a German Commercial Code).
Federal Labour Court, decision dated 14 July 2010 (10 AZR 291/09)