Employment
Non-compete clauses after termination: How far can they go?
Swiss courts have increasingly scrutinized post-employment non-compete clauses. We analyze recent case law and what it means for employers drafting restrictive covenants.
Dr. Anna Berger Post-employment non-compete clauses (Konkurrenzverbote) are a staple of Swiss employment contracts — particularly for senior roles, sales, and anyone with access to client relationships or trade secrets. But recent case law suggests that courts are applying stricter scrutiny.
The legal framework
Under Art. 340–340c CO, a non-compete clause is valid only if:
- The employee has insight into the employer’s clientele or trade secrets
- The use of such knowledge could significantly harm the employer
- The clause is limited in time, place, and scope
- The restriction is not excessive given the employee’s economic freedom
The maximum duration is generally three years, though courts rarely uphold clauses beyond 12–18 months without compelling justification.
Recent trends in case law
Several recent cantonal court decisions have narrowed the enforceability of broad non-competes:
Geographic scope
A Zurich Commercial Court ruling (2025) struck down a nationwide ban for a regional sales manager, holding that the restriction must correspond to the employee’s actual territory.
Compensation for restriction
While Swiss law does not require mandatory Karenzentschädigung (unlike German law), courts increasingly consider the absence of compensation as a factor weighing against enforcement.
Client solicitation vs. competition
Courts now draw a sharper line between general competitive activity and targeted client solicitation. A blanket industry ban is harder to uphold than a specific no-solicitation clause.
Practical implications for employers
- Be specific: Define the protected interest clearly (clients, know-how, market segment)
- Match the scope to the role: A CEO’s clause can be broader than a junior consultant’s
- Consider offering compensation: Voluntary Karenzentschädigung strengthens enforceability
- Review regularly: A clause that was reasonable at hiring may be disproportionate years later
- Document the interest: If you claim client access, be ready to prove it
For employees
If you’re leaving a role with a non-compete clause, don’t assume it’s unenforceable — but don’t assume it’s bulletproof either. The key question is whether your former employer can demonstrate a legitimate interest that outweighs your professional freedom.
We regularly advise both sides on non-compete disputes. Early assessment — ideally before the departure — can prevent costly litigation.
Dr. Anna Berger specializes in corporate and employment law. With over 15 years of experience advising Swiss SMEs, she brings a pragmatic approach to complex legal questions.