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Employment contract

Posted by emelia16-285362 - Created: 6 years ago
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10 replies (Showing replies: 1 to 10)

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Posted by chris.sargent - 6 years ago

Okay, in the very wiki page you posted it has the most important rule of all, which is the one that relates to the EU. "A CNC may not unreasonably limit the possibilities of the employee to find a new employment."

I suggest you take the time to read the links as they related to French employment law and a case that happened in 2002 which effectively re-wrote the rule book on French non-compete clauses so far as, so it says, that any non-compete clause written before 2002 is likely to be illegal. It should also be noted from the links that should a company wish to enforce the non-compete clause, they will need to some recompense to the employee. This is not quite the same as gardening leave - this is when a company asks you to stay away from work and not conduct in any work-like activities for them or any other employer for the duration of your notice period.

Here are the links to the two artciles I posted again: http://www.iln.com/bullet_iln_three_one/lefevre_article_two.htm and http://www.acc.com/legalresources/publications/topten/Non-compete-Clauses-in-Europe.cfm

I think I'm done with this topic now and I'll leave you with your belief that A, the French Inspecteur de Travail will have scrutinised and screened each and every French employment contract for it's legality, applicable to the specific employee in a specific case and B, an illegal contract is legal if you've signed it.

Seems the OP has already left the conversation but my advice, take the new job and have fun! Life's too short to worry about what your current employer might do and the likelihood is, they won't do anything anyway.

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Posted by Squeaky-882728 - 6 years ago

chris,

However, EU law dictates that every person in the EU should have the right to work and earn a living - this is an absolute fundamental principal and countries / companies are not allowed to have contracts that contravene this right. If they do, then they are rarely legal. 

As I've already mentioned, French employment contracts are not made up as they go along. They have to conform to the Code du Travail and had the OP had any problem with the clause within it he should have not signed it, checked with the Inspecteur du Travail that it was legal as defined by the Code du Travail (which it will have been) and it if was, he shouldn't have signed it if he wasn't happy with it. Having signed it, he is now legally obliged to adhere to it.

I am absolutely sure of my facts about FRENCH employment contracts having restrictive/prohibitive clauses within them.  My previous gérant was a lawyer and adhered very strictly to the Code du Travail and everything legal. Within most 'specialist' or 'sales' contracts there will be some clause regarding working elsewhere either geographically and/or time specified (as is the case for the OP).

Just a simple Google search reveals lots of information about this and specifically within France. As ever with case law, the most likely outcomes are always heavily influence by other similar rulings and I found these webpages which explain it quite well: http://www.iln.com/bullet_iln_three_one/lefevre_article_two.htm and http://www.acc.com/legalresources/publications/topten/Non-compete-Clauses-in-Europe.cfm.

There's no point whatsoever looking at case law outside of France. Couldn't open your link but anyway it wasn't to an official or other French website quoting the rights under the Code du Travail so will have been presumably irrelevant. Try this instead:

http://fr.wikipedia.org/wiki/Contrat_de_travail_en_France

This phrase is particularly relevant::  clause de non-concurrence : par cette clause, l'employé s'engage à ne pas travailler pour une entreprise du même secteur d'activité, dans une zone géographique définie et dans un temps limité, après son licenciement ou sa démission ; elle doit faire l'objet d'une contrepartie financière4.

The point is, a non-compete clause can ONLY be legal if the company can reasonably show that you working for a competitor is damaging to it's own business. Nobody can stop you working for a competitor if this is not the case, because this contravenes your right to work and earn a living. "A CNC may not unreasonably limit the possibilities of the employee to find a new employment."

Not so. In France an employer DOES NOT have to prove an ex-employer (or self-employed person contracted with them)  is damaging to its own business. The ex-employee is bound within the clause and it suffices for the Prudhommes to regard the new employment contract to justify that the clause has been broken. If an employer wishes to waive this clause on severance, they do so in writing to the employee.  If there is a geographical clause for example for a self-employed estate agent not to work for another agent within six months, they can't. Simples. Going back to the OP, if you can pick the bones out of what I am trying to explain, under your French employment contract you have signed to accept that you won't design for a competitor upon severance of your contract and that's the legal stance I'm afraid.  You can find another employment contract but you can't do the job specified as an exclusive clause within your contract. It would help if you pm'd me with the precise wording from your contract of this clause.

I'm not a lawyer but I have spend a lot of time studying incidents of non-compete clauses and their validity. Of course, if you have any doubt then you should go to see a lawyer for clarification. If you have home / house insurance, sometimes they will cover you for some legal advice in these matters. But just because your contract might be written by a company's expert "comptable" I would not take it as gospel, I have seen MANY employment contracts that have illegal covenants in them - it is well known that companies leave them in as a scare-tactic.

In France??  If not, you need to understand it's totally different here. To the OP - you do not need to see a lawyer, you need to see an Inspecteur du Travail. Scare-tactics don't exist in French employment contracts by the way! It's all governed and regulated very strictly by the Code du Travail.

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Posted by chris.sargent - 6 years ago

And I don't quite get what you mean by the UK being a minor financial EU contributor... that seems pretty contradictory to what I've read - perhaps 28 years is a bit too long to be in France! ;-)

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Posted by chris.sargent - 6 years ago

I'm not suggesting French Employment contracts are governed by the EU nor am I willy-nilly referreing to EU law without a basic understanding of it. However, EU law dictates that every person in the EU should have the right to work and earn a living - this is an absolute fundamental principal and countries / companies are not allowed to have contracts that contravene this right. If they do, then they are rarely legal.

Just a simple Google search reveals lots of information about this and specifically within France. As ever with case law, the most likely outcomes are always heavily influence by other similar rulings and I found these webpages which explain it quite well: http://www.iln.com/bullet_iln_three_one/lefevre_article_two.htm and http://www.acc.com/legalresources/publications/topten/Non-compete-Clauses-in-Europe.cfm.

The point is, a non-compete clause can ONLY be legal if the company can reasonably show that you working for a competitor is damaging to it's own business. Nobody can stop you working for a competitor if this is not the case, because this contravenes your right to work and earn a living. "A CNC may not unreasonably limit the possibilities of the employee to find a new employment."

I'm not a lawyer but I have spend a lot of time studying incidents of non-compete clauses and their validity. Of course, if you have any doubt then you should go to see a lawyer for clarification. If you have home / house insurance, sometimes they will cover you for some legal advice in these matters. But just because your contract might be written by a company's expert "comptable" I would not take it as gospel, I have seen MANY employment contracts that have illegal covenants in them - it is well known that companies leave them in as a scare-tactic.

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Posted by Fish24 - 6 years ago

Plus - I forgot to mention - If you, in the future, believe you have a case, first get free advice from the departmental Inspection de Travail with regard to your contract (don't forget to find out if your employment comes under a specific Convention de Collectivité) or, at the worst case, follow-up in the Prudhomme (Works Tribunal) Court who deal with all cases to do with employment, both employée and employer.

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Posted by Fish24 - 6 years ago

I honestly cannot understand why so many insist on quoting EU legislation concerning certain subjects applicable to individual countries without checking whether the country concerned has priority and the legal right to apply its own laws and with priority to the persons who reside, contribute and live in that country.

It would be more useful to separate EU legislation, in particular the UK's laws where the UK is a minority financial contributor anyway, and study the official French or other countries' legislation

I appreciate that certain legislation is for the majority of EU countries (medical/pensions, etc but not all.

I absolutly agree with Squeaky's (and other reliable persons) pertinant advice as we have both (me 28 years!) lived for many, many years in France, has been there and been through or experienced most things and try to keep up-to-date with the new laws.

If possible, go and see an recommended avocat and pay their fees for professional advice.

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Posted by Squeaky-882728 - 6 years ago

chris.sargent

It's not strictly true that if it's in a contract it's legally binding, an employment contract is not above the law - to take this to an extreme, if you signed a contract that said you had to kill someone if you left, do you think you'd get away with Murder? EU law dictates that every person should be able to make a living. Trying to prevent someone from doing a specialist job by preventing them from working for competitors is a pretty grey area. What you absolutely can not do is use inside information that is otherwise not publically available in the new company to win customer or win business etc.

I'm sorry Chris, but French employment contracts have to conform to the very strict rules within the Code du Travail in France, and are thus legally binding.  They are prepared by a company's 'comptable' normally and adhere to strict rules regarding the subjects included and their conformity with the Code du Travail. There is no 'grey area' whatsoever with the competition clauses which are included

The more specific the limitations, the more likely it is to be legal and allowed. For example, if a contract says "you cannot work for anyone involved with the design of engines, anywhere in the world" it would be pretty much illegal - and contract law would normally apply the "blue line" rule (or maybe red line!) and erase that clause from the contract - the people issuing the contract would even have the chance to change it. However, if the contract said, "you can not design engines for XYZ, ABC, ETC companies within a radius of 100km of our office" then that would be pretty specific and much likely to be upheld.

The limitations are legally binding regardless of how specific they are.  I think you are not applying French law for French contracts under the Code du Travail here perhaps.

If it's in your contract, the most the company could expect to achieve would be to sue you for breach of contract or damages. Tthe company would have to pursue you and it would be their responsibility to prove that you were using inside info and that you're leaving to a 'competitor' was detrimental to their business... so you'd have to question whether the company would really feel like it's having it's business damaged by you leaving and whether those damages are more than the cost of taking you to court. Normally these clauses are included as a scare tactic and their effectiveness depends on lots of factors - and not to mention your level of seniority.


In this case the company would have nothing to prove as the tribunal would wish to see the new employment contract and establish with the new company the precise nature of the employee's work. If this involved engine design it's contrary to the original employment contract and the original employer will have no case to prove.

I have to admit that most of my knowledge on this is from English law but I can't imagine it's too different as much of it is dictated by the EU.

I rest my case!  It isn't dictated by the EU, it's dictated in France by the Code du Travail and Inspection du Travail.

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Posted by chris.sargent - 6 years ago

It's not strictly true that if it's in a contract it's legally binding, an employment contract is not above the law - to take this to an extreme, if you signed a contract that said you had to kill someone if you left, do you think you'd get away with Murder? EU law dictates that every person should be able to make a living. Trying to prevent someone from doing a specialist job by preventing them from working for competitors is a pretty grey area. What you absolutely can not do is use inside information that is otherwise not publically available in the new company to win customer or win business etc.

The more specific the limitations, the more likely it is to be legal and allowed. For example, if a contract says "you cannot work for anyone involved with the design of engines, anywhere in the world" it would be pretty much illegal - and contract law would normally apply the "blue line" rule (or maybe red line!) and erase that clause from the contract - the people issuing the contract would even have the chance to change it. However, if the contract said, "you can not design engines for XYZ, ABC, ETC companies within a radius of 100km of our office" then that would be pretty specific and much likely to be upheld.

If it's in your contract, the most the company could expect to achieve would be to sue you for breach of contract or damages. Tthe company would have to pursue you and it would be their responsibility to prove that you were using inside info and that you're leaving to a 'competitor' was detrimental to their business... so you'd have to question whether the company would really feel like it's having it's business damaged by you leaving and whether those damages are more than the cost of taking you to court. Normally these clauses are included as a scare tactic and their effectiveness depends on lots of factors - and not to mention your level of seniority.

I have to admit that most of my knowledge on this is from English law but I can't imagine it's too different as much of it is dictated by the EU.

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Posted by Squeaky-882728 - 6 years ago

I can only add that there's always a clause in agents commerciaux contracts for immobiliers for usually a 6 month period that they won't work the same area. If it's in your contract and you signed it, as Fish says it's legally binding. Go and see the Inspection du Travail to confirm.

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Posted by laughingboy-409220 - 6 years ago

The situation Ras describes is called 'garden leave' in the Uk, I believe.