Non-disparagement clauses in Dutch employment contracts
A non-disparagement clause (non-disparagement beding or verbod op negatieve uitlatingen) is a contractual provision under which the parties agree not to make negative, defamatory, or harmful statements about each other after the end of the employment relationship. Such clauses are frequently included in settlement agreements (vaststellingsovereenkomsten) in the Netherlands and are also occasionally found in employment contracts themselves.
A typical non-disparagement clause prohibits both the employer and the employee from making disparaging statements about the other party to third parties, the media, on social media, or in other public or private contexts. The clause is usually mutual - it binds both the employer (including its managers and HR staff) and the employee. In practice, enforcing a non-disparagement clause against an employer (preventing it from speaking negatively about a former employee to prospective employers) is often more valuable to the employee than the reverse.
Enforceability under Dutch law
Non-disparagement clauses are generally enforceable under Dutch law, subject to the general principles of contract law in Book 6 of the Dutch Civil Code. They must be reasonably specific - an overly broad clause that effectively prohibits any comment about the other party may be deemed void as contrary to freedom of expression. Courts will interpret such clauses narrowly where there is ambiguity. A clause prohibiting statements that are factually accurate but unflattering may be difficult to enforce, while a clause prohibiting false or misleading statements is on firmer legal ground.
Penalty clauses under Dutch employment law
Non-disparagement clauses are almost always accompanied by a contractual penalty (boetebeding) for violations. Under Article 6:91 of the Dutch Civil Code, a penalty clause is enforceable in Dutch law, but courts retain the power to moderate an excessively high penalty under Article 6:94 of the Dutch Civil Code if enforcement in the given circumstances would be unreasonable. When negotiating a settlement agreement, it is important to review the scope of the non-disparagement clause and the associated penalty carefully. An employment lawyer can advise on reasonable drafting and the limits of enforceability.
Non-disparagement clauses in settlement agreements are contractual obligations under Book 6 of the Dutch Civil Code; a penalty clause (boetebeding) attached to them is enforceable under Article 6:91 of the Dutch Civil Code, though courts retain the power to moderate an excessive penalty under Article 6:94 of the Dutch Civil Code if enforcement would be unreasonable in the circumstances. Dutch courts interpret such clauses narrowly: a clause that effectively prohibits factually accurate statements risks being voided as contrary to freedom of expression, while a clause restricted to false or misleading statements stands on firmer legal ground. When negotiating a settlement agreement, both the scope of the prohibition and the daily penalty amount should be reviewed carefully, as employers sometimes draft overly broad clauses with disproportionately high penalties.
Non-disparagement clauses in settlement agreements are contractual obligations under Book 6 of the Dutch Civil Code; a penalty clause (boetebeding) attached to them is enforceable under Article 6:91 of the Dutch Civil Code, though courts retain the power to moderate an excessive penalty under Article 6:94 of the Dutch Civil Code if enforcement would be unreasonable in the circumstances. Dutch courts interpret such clauses narrowly: a clause that effectively prohibits factually accurate statements risks being voided as contrary to freedom of expression, while a clause restricted to false or misleading statements stands on firmer legal ground. When negotiating a settlement agreement, both the scope of the prohibition and the daily penalty amount should be reviewed carefully, as employers sometimes draft overly broad clauses with disproportionately high penalties.