Breach of a non-compete or non-solicitation clause

A non-compete clause contains a prohibition for the employee to perform similar work at another company or as an entrepreneur after the end of the contract. An employment contract may also contain a non-solicitation clause. This is a form of non-competition clause. With a non-solicitation clause, an employer wants to prevent his employee from working for or with his customers, suppliers and cooperating partners after leaving employment.

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If employees cross over to a competitor or start their own business, it can hurt your company. For instance, if they approach your business associates, you risk losing them. Alternatively, if they take confidential information, the consequences can be incalculable. This is why many companies include a non-compete clause in their employment contracts. But what can you do if your (former) employees circumvent the non-compete clause? This also applies if the employee proceeds as a freelancer.

In such situations, you will want to take action. That can be against the (former) employee, but possibly also against the competing company. You will then need to be able to prove that the non-compete clause has been breached. Sometimes this is straightforward, such as because you have been tipped off by a relation or another employee or because the employee in question was unaware of the breach. But if the employee deliberately acted in breach of the non-compete clause—as a freelancer, for example—gathering evidence is often more complex. The employee will then have exercised more caution. You will have to prove a breach of the clause. We regularly see that a breach of a non-compete clause also involves the taking of confidential information, which then comes into the possession of a competing company. 

Hoffmann’s investigators can discreetly investigate for you what exactly is going on. The result is a clear investigation report, together with the evidence that has been gathered.

Our approach: how does an investigation into a breach of a non-compete or non-solicitation clause work?

Hoffmann has many years of experience in these types of investigations. We have all the specialisms involved under one roof. Using surveillance, interviews, desk research and digital forensics, our specialists quickly and discreetly uncover the facts of any potential violation.

We always start by collecting information. After this phase, our investigators analyse and assess the information gathered. Do they detect a breach of the non-compete clause? Then, after consulting with you, they may have a frank discussion with your (former) employee.

You will then receive an investigation report containing the investigation findings. After obtaining legal advice, you can then opt to take (legal) action against your (former) employee and the competing company. You can use our investigation report as a basis for this.