Non Compete Agreement In Spanish
In this sense, the only way to eliminate the validity of the Union, once it has been agreed, would be by mutual agreement between the parties. There is therefore a need for a negotiation process. In addition, the agreement to revoke the federal government should be concluded in writing to avoid possible disputes over the applicability of the federal state. The length of time an employee stays on the normal salary and is bound by his employment contract, but at the same time, is asked by the employer not to go to the office or to contact clients or customers is usually used only in disciplinary proceedings, while the investigation takes place. The employer cannot put the worker on a gardening holiday unless it is specifically mentioned in the employment contract, since it is not provided for by law. For this reason, they can only be agreed by mutual agreement within the framework of the employment contract. In Spain, it is customary to introduce punitive clauses in post-contractual non-competition agreements where the worker violates the non-competition obligation. However, if a sentence were to be imposed, the labour tribunal could moderate it. In principle, labour tribunals object to penalties greater than the worker`s compensation for the obligation of post-contract non-competition. Finally, it should be noted that once a post-contract non-competition obligation has been found, the employer cannot unilaterally waive this obligation.
In practice, where the employer and the worker have entered into a post-contract non-competition agreement concluding compensation, the worker is entitled to compensation, even if the employer is not interested in maintaining the non-competition obligation in effect at the end of the employment. To waive this non-competition obligation, an agreement between the parties is necessary. Under Spanish law, workers are legally subject to a non-competition obligation during their employment relationship. In other words, if the employer does not allow it, wage or professional activities that compete with their employer`s activity cannot be exercised. This type of agreement can be reached at any time during the period of validity of the employment relationship, without the employee or employer being able to resign unilaterally. In the event that compliance with this clause is left to the discretion of one of the parties, the agreement is considered null and void. Under Spanish law, the non-competition clause agreed between the parties would also be valid if the termination of the employment relationship is not justified, unless there is an agreement to the contrary. Therefore, if nothing concrete has been agreed on this, the non-competition clause would apply regardless of the reason for dismissal (fair dismissal, unfair dismissal, voluntary resignation, retirement, etc.). The validity of the post-contract non-competition obligation is based on compliance with the following requirements, and we discuss in more detail the first three below: Mutual agreement in writing. With regard to the first requirement, Spanish jurisprudence has established that a contract that depends exclusively on the will of the company is not sharpened, since the effectiveness of the agreement is left to the discretion of a single party, which is contrary to Article 1256 of the Spanish Civil Code (Cédigo Civil). Therefore, any clause stipulating that confederation could be unilaterally revoked is null and void.
Firstly, this agreement is governed by Article 21 of the Status of Spanish Workers and, in order to include it in the contractual relationship, the parties, in particular the company, must take into account certain requirements in order to prevent a court from declaring the agreement null and fit.