Definition and Types of Restrictive Covenants
As a general rule, all clauses which are not compatible with the content of the said act, are null and void, insofar such clause limits the rights or aggravates the duties of the employee. The following restrictive covenants are recognised and may be enforceable under the law:
- Non-compete clauses;
- Non-solicitation of customers;
- Non-solicitation of employees.
Enforcement of Restrictive Covenants—process and remedies
In case an employee violates the non-compete clause for example, the damage claim cannot be higher than the repayment of the indemnity awarded to the employee on top of indemnity equal to the same amount.
Use and Limitations of Garden Leave
Garden leave is not allowed under Belgian employment law, because it entails that the employee would not be allowed to perform his/her job, as this condition is deemed an essential element of every Belgian employment contract. A garden leave where the employee is exempt from performing his/her duties during the notice period, is only possible with the employee’s explicit consent. The unilateral decision of an employer to send an employee on garden leave, would grant the employee the right to claim damages, or the contract could even be regarded as being terminated by the employer (constructive dismissal).