New law restricts the ban on ancillary activities for employees

What is an ancillary employment clause?

In principle, employees are free to perform ancillary work in addition to an employment contract. Employers often include an ancillary activities clause in the employment contract to limit this ancillary work. For example, that the employee is not allowed to perform ancillary activities, unless he receives permission to do so from the employer. At the moment, the ancillary activities clause is not regulated by law. This will change from 1 August 2022.

Exception to the prohibition: an objective justification

You may only include a prohibition to perform ancillary activities during the employment if there is an objective justification. For example:

• if the health and safety of the employee is at stake. For example, in the event of violation of the Working Hours Act (this includes rules about working and rest times, breaks and night shifts);
• the protection of confidentiality of business information;
• if ancillary activities harm your employer's interest. Think of unwanted competition.

It is not mandatory to include these exceptions in advance in the employment contract itself. As soon as the employee informs you that he or she intends to perform ancillary activities, you may also indicate whether and which exception plays a role in that situation, and therefore whether a prohibition applies.

Customize your legal documents

Due to the amendment of the law, existing provisions in the employment contract that prohibit ancillary activities are invalid if you do not provide an objective justification. Is there an absolute ban on ancillary activities? Then adjust this to an obligation to request permission in advance. The clause can be included in the employment contract or the employment conditions regulations. The following applies to both cases: ensure that the clause complies with the new law.

Do you need help drafting a valid ancillary activities clause? Contact our lawyers.