Arbetsrättsliga konkurrensklausuler – en undersökning utifrån svensk rätt

Sammanfattning: On January 5, 2023, the U.S. competition authority, the Federal Trade Commission (FTC) proposed a categorical ban on non-compete clauses at the federal level. The proposal has initiated a renewed debate on a subject that has long been discussed in the field of labor law. This thesis focuses on the regulation of non-compete clauses in employment contracts in Sweden, aiming to describe and analyze this regulation. During employment, employees are prohibited from competing with their employers due to the duty of loyalty. However, once the employment ends, the loyalty requirement ceases. By incorporating a non-compete clause, employees can be temporarily restricted from competing even after the termination of their employment for a certain period. The thesis examines the concept of non-compete clauses and the role these clauses serve within labor law, along with the current regulatory framework in Sweden. The regulation consists of an interaction of collective agreement provisions, regulation in the Swedish Contracts Act, and longstanding case law. Non-compete clauses are initially valid and enforceable based on the principle of freedom of contract. However, Section 38 of the Contracts Act allows for the invalidation of a non-compete clause if it is deemed unreasonable. The case law in this area reflects a highly restrictive approach. The assessment of reasonableness considers both the intent and extent of the non-compete clause. As such, the court considers various factors and conducts an overall assessment to determine the reasonableness and validity of the clause in each specific case. Due to the multitude of factors considered, it is difficult to predict which factors will be decisive in the court’s assessment. This unpredictability is arguably mostly to the disadvantage of employees. Thus, the establishment of clearer guidelines from the court, for instance regarding the interplay of the relevant assessment factors, would be advantageous to establish a clearer legal framework.