Can you still agree on a prohibition on ancillary activities?

Employers are no longer allowed to prohibit ancillary activities of employees without any reason. But what can you, as an employer, do to prevent your company or your employees from getting into trouble because they take on another job?

Currently, most ancillary activities clauses contain an absolute prohibition on ancillary activities. From 1 August 2022, a prohibition to perform ancillary activities will only be valid if it can be justified on the basis of objective grounds.

However, the legislator does not point out what an ‘objective ground’ is. The Working Conditions Directive does mention a few examples, such as:

• Health and safety, for example ancillary activities that are severely stressful, hard or dangerous.
• Protection of business confidentiality, for example if an employee starts working for a competitor.
• Integrity of public services. This includes ancillary activities that make a civil servant vulnerable for blackmail.
• Avoidance of conflicts of interests, which may arise, for example, if an employee starts working for a supplier or customer. Or if an on-call worker starts working for somebody else for fixed hours and is therefore less available for on-call work.

There might also be objective grounds if the employee works more hours than permitted under the Working Hours Act. In order to assess whether there is an objective ground, the employer must assess it in terms of its effectiveness (suitability and appropriateness) and proportionality. The interests of the employee also have to be taken into account.

As of 1 August 2022, clauses will be immediately null and void if they prohibit ancillary activities or contain grounds which are not ‘objective’. As an employer, you can however repair this nullity by giving an objective ground when you want to prohibit ancillary activities.

It is advisable to include an amended ancillary activities clause in new employment contracts, which states that ancillary activities are only prohibited subject to objective grounds. We advise you not to include any concrete objective grounds in the clause; after all, you only have to give an objective ground when you actually invoke the clause. That way, you as an employer are not restricted to the grounds stated in the clause.

Employment lawyers

Do you have any questions about the new regulation of ancillary activities of employees? Do you want us to check your ancillary activities clauses? Or do you have any other employment law issues you would like to submit to a lawyer? Please contact us: