If an employer hires a new employee and that employee is bound by a non-compete clause with their previous employer, the new employer may be required, according to the October 13, 2026, ruling of the Court of Appeal in The Hague, to grant the former employer access to (digital) data.
What happened?
An employee was employed by EU-Tax from 2017 to 2019. Upon the termination of her employment, the parties agreed to a non-compete clause that would remain in effect for one year after the termination of her employment. During this period, the employee was not permitted to work for EU-Tax’s clients.
When a former client of EU-Tax switched to the employee’s new employer, EU-Tax suspected that the employee had breached the agreements that had been made. In the proceedings, EU-Tax sought, among other things, payment of the contractual penalties and compensation for damages resulting from unfair competition by the employee and her new employer. The district court had already dismissed this claim because EU-Tax did not have sufficient evidence. EU-Tax therefore asked the court of appeals for access to the new employer’s digital data in order to gather this evidence.
What was the court of appeals’ ruling?
Based on the available information, the court ruled that the employee’s involvement in the client’s transition had not yet been sufficiently substantiated. Furthermore, EU-Tax had not sufficiently demonstrated that the employee had performed work for the client during the term of the non-compete clause. The court therefore ruled preliminarily that the penalties and damages could not be awarded at this time.
The court did, however, grant the request for access to EU-Tax data. The law stipulates that a party may obtain access to certain (digital) data held by another party. In this case, the data in question consisted of a limited amount of digital information, including email headers and audit logs from CRM and accounting systems. Access was further limited to data pertaining to the employee and the client who had switched companies during the period covered by the non-compete clause. The court ruled that access should be granted by an independent bailiff, possibly assisted by an IT expert.
What does this mean for employers?
This ruling not only demonstrates the possibility of gathering evidence of a breach of a non-compete clause by a former employee through a request for access to records, but also emphasizes the importance for (new) employers to thoroughly inquire with employees whether they are subject to a non-compete or non-solicitation clause and what exactly these restrictions entail. As a new employer, you may in such a case face a request for access to your records and a claim for damages due to unfair competition.
Do you have questions about a non-compete clause or a potential dispute with a (former) employee? Our employment law attorneys are happy to advise employers and employees on their rights and options.
