Värvningsförbud i anställningsavtal - En diskussion kring behovet av värvningsförbud av medarbetare och kunder samt om deras skälighet

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The general purpose of this thesis is to ascertain the Swedish legal position regarding non-solicitation clauses in individual employment contracts. Within labour law there is a duty of loyalty, which includes an obligation not to compete with your employer. The general rule is that the duty of loyalty ceases to apply when the employment ends. However, the duty can be extended to apply after the ending of an employment. In order to investigate the need and use of non-solicitation clauses, both legislated and contractual extensions of the duty of loyalty have been reviewed. The protection for trade secrets constitutes the statutory regulated extension. However, in order to trigger liability to payment of compensation post-employment the presence of exceptional circumstances is required. The terms and prospects of entering into agreement on further protection in the form of non-compete clauses in individual contracts are regulated by collective agreements and general contract law. The Court of Labour has taken a highly restrictive approach on non-compete clauses. Non-solicitation clauses have become a common phenomenon as an alternative to conventional non-compete clauses. The allowance of non-solicitation clauses is not regulated in collective agreements. Thus, contractual freedom prevails within the framework of contract law. According to 38 § Contracts Act the allowance of the clauses are determined by an unfairness test. A few aspects of importance are whether all customers and workers of the employer are included, if the clause only prohibits active attempts at recruiting, and whether there are prudential reasons to use the clause. The latter appears to be required in order for a non-solicitation clause to be valid. Protection of clientele is regarded as such a legitimate interest. Regarding non-solicitation of employees, the Court of Labour has expressed that the legitimate interest is the hindrance of the competitive advantage a former employee can have in regard to recruiting former co-workers, and not the employer´s interest in retaining key personnel in the business. When it comes to contract validity periods, the two rulings from the Court of labour on non-solicitation of employees diverge from case law regarding non-competes and non-solicitation of customers. Thus, the legal position concerning validity periods on non-solicitation of employees cannot be determined. The area of non-solicitation clauses is in need of further clarity in general, and regarding validity periods in particular.

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