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Supreme Court of Denmark

Employment contract not inadequate 

Case no. 35/2009
Judgment 6 October 2011
 

PROSA acting for A
vs.
B

The mere fact that the employee was not covered by non-solicitation clauses or subject to restrictions on employment opportunities as a result thereof meant that an employment contract containing no references thereto was not inadequate, cf. section 2(1) of the Danish Consolidation Act on an Employer's Obligation to Inform Employees of the Conditions Applicable to the Employment Relationship (the Act) 

The case concerned the issue of whether employee A during his employment in company B was covered by one or more non-solicitation clauses or subject to restrictions on his employment opportunities as a result thereof, and whether such clause(s) had to be regarded as a material condition of the employment relationship of which B was obliged to inform A in the employment contract, cf. section 2(1) of the Act.

On the evidence, the Supreme Court did not find that it had been proven on a balance of probabilities that A during his employment in B or its subsidiary had been covered by non-solicitation clauses agreed between B and other companies. In addition, the Supreme Court found no reason to assume that A had otherwise been subject to restrictions on his employment opportunities as a result of agreements between B and a third party. For this reason alone, B had not been obliged to inform A of B's use of non-solicitation clauses in certain situations, cf. section 2 of the Act.

Consequently, the Supreme Court did not find any reason to consider whether an employer was under a general obligation under section 2 of the Act to inform an employee in the employment contract of non-solicitation clauses in agreements between the employer and a third party of material importance to the employee. However, the Supreme Court did find reason to note that according to the wording of section 2(1) which obliged the employer to inform the employee of "all essential conditions applicable to the employment relationship" and the exemplification in section 2(2) of information covered by this obligation, it was reasonable to assume that this provision did not, as a starting point, apply to employment restrictions which did not result from the legal relationship between the employer and the employee but was an indirect result of the employer's legal relationship with a third party. However, the provision should also be interpreted on the basis of EU law, including in particular Article 2 of Council Directive of 14 October 1991 (91/533/EEC). Since section 2 of the Act in any case did not apply to this case, as there were no agreements restricting A's employment opportunities, the Supreme Court did not find reason to refer the case to the European Court of Justice. 

With this, the Supreme Court affirmed the judgment of the Maritime and Commercial Court.

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