The case concerned an IT employee, A, who, in the autumn of 2004, was employed with company D, a subsidiary of company C, a branch of company E. At this point, company E, and consequently also companies C and D, were transferred to company B.
In the autumn of 2004, companies E and F concluded a Master Agreement in connection with the negotiations for the business transfer of company E to company B. The agreement contained a non-solicitation clause restricting the possibilities of the contracting parties’ employees to obtain employment with the other party. Company E's legal obligations under the non-solicitation clause passed to company B as a result of the business transfer to company B. In the agreement, the contracting party relevant to A was clearly defined as Company E and any affiliated company thereof with the exception of company C and its subsidiaries.
At the time of the business transfer, A was employed with company D and was later transferred to employment with company C. Both of these companies belonged under company E and A was thus included in the business transfer of company E to company B.
In the autumn of 2006, non-solicitation clauses in the IT industry received a lot of media attention and company B was mentioned on several occasions. According to the media, company B had entered into non-solicitation clauses without informing its employees, which restricted their employment opportunities elsewhere.
On 22 November 2006, A claimed against company B that his statement of employment terms was incomplete. A believed that he was subject to agreements preventing his free job opportunities without this having been communicated to him. He considered it a fundamental term of employment under the rules of the Danish Particulars of Employment Terms Act (ansættelsesbevisloven). Company B could not understand it and claimed that A was not subject to such agreements.
A then filed suit against company B claiming compensation under the Particulars of Employment Terms Act.
The Supreme Court's judgment
The decisive factor in the court's assessment of whether A was subject to a non-solicitation clause was that the contracting parties to the non-solicitation clause were clearly defined. Furthermore, it appeared that company C, and thus company D with which A was employed at the time of the business transfer, was expressly exempted from the employment restrictions of the clause.
The Supreme Court held that there was no basis for assuming that A had been restricted in his occupational possibilities as a result of the non-solicitation clause between companies B and F. For that very reason, company B was not obliged under the Particulars of Employment Terms Act to inform A about company B's use of such clauses.
The Supreme Court further declared that the employer's duty under the Particulars of Employment Terms Act to inform the employee about ”all fundamental terms applying to the employment” does not per se imply a duty to inform about employment restrictions. Such restrictions are an indirect consequence of a legal relationship between the employer and a third party and not of the legal relationship between the employee and the employer.
iuno's opinion
The judgment shows that to all appearances a non-solicitation clause between an employer and another company does not constitute a fundamental term of employment within the meaning of the Particulars of Employment Terms Act. As a result, the employer is not obliged to inform the employee about it.
[Supreme Court judgment of 6 October 2011, case no. 35/2009]