Employment law
The non-competition clause
Void in principle, valid by exception: six months, fifteen kilometres, and only two triggering events.
Many Malian contracts contain a non-competition clause drafted on a foreign model: two-year duration, nationwide scope, a broad ban on practising the trade. Such clauses share one feature, they are void.
The Labour Code lays down a clear principle: any clause prohibiting an employee from carrying on an activity after the contract ends is void. The exception exists, but it is confined within precise bounds, and a clause exceeding them falls back into nullity. Labour Code, Article L.17 (French).
1. Two periods, two regimes
A distinction must first be drawn between what happens during the contract and what happens after, because the rules differ.
| During the contract | After termination | |
|---|---|---|
| Basis | The law itself | A clause written into the contract |
| What is prohibited | Carrying on an activity liable to compete with the company | Carrying on a competing activity, within the clause's limits |
| What remains permitted | Another professional activity outside working hours, if it does not compete with the company | Any activity outside the scope, duration and radius set |
| Is a clause needed? | No, the rule applies of itself | Yes, without a written clause there is no obligation |
During the contract, an employee may therefore carry on another professional activity outside working hours, unless otherwise agreed, provided it does not compete with the company. After termination, the obligation survives only if it was formally stipulated in the contract. Labour Code, Article L.16 (French).
2. The three statutory limits
The post-contract clause is valid only within the following bounds, which are cumulative:
| Limit | Content |
|---|---|
| Scope | Only activities of a kind that compete with the employer |
| Duration | Six months maximum after termination |
| Geographic area | A 15-kilometre radius around the place of employment |
To which is added a triggering condition that further narrows the clause's reach: it applies only where the contract ends by the employee's own act, or through dismissal for gross misconduct.
This last point is decisive and often overlooked. An employee dismissed on economic grounds, or whose fixed-term contract simply reaches its term, falls into neither case: the clause cannot be enforced against them, even if it appears in their contract.
3. What makes a clause ineffective
| Drafting encountered | Why it does not hold |
|---|---|
| "Prohibition on carrying on any professional activity for two years" | A general ban on working, and a duration beyond six months |
| "Throughout the national territory" | Exceeds the 15-kilometre radius |
| "Whatever the cause of termination" | Extends the clause beyond the two triggering events |
| "Prohibition on practising the trade of…" | Targets a trade, not an identified competing activity |
| An oral clause or a reference to an internal note | It must appear formally in the contract |
The drafting rule that follows from this table is simple: the more precise the clause, the stronger it is. A clause naming the activities covered, citing the reference place of employment, setting six months and recalling the two triggering events has far more chance of taking effect than a broad formula.
4. Financial consideration
The parties may agree a compensatory clause for an employee who scrupulously observes these conditions. The amount is freely negotiated when the contract is signed.
It is not imposed by the Code, but it deserves consideration for two practical reasons. First, consideration makes the clause more balanced and therefore more defensible. Second, it gives the employer a useful lever: consideration that ceases to be due when the clause is not invoked allows the obligation to be waived where a departure carries no competitive risk.
If consideration is provided for, the contract benefits from stating its amount, the payment arrangements, and the employer's option to waive the clause at the time of termination.
5. What happens if the clause is breached?
The employer may claim damages, the amount of which is set by the labour court.
Three points of method:
- The loss must be shown. It is not enough to establish that the former employee carries on a competing activity: the harm suffered by the company must be characterised.
- The clause must first be valid. A clause outside the statutory bounds supports no claim, whatever the reality of the loss.
- The route is judicial. The employer cannot take matters into its own hands by withholding sums due in the final settlement: deductions from pay are exhaustively listed.
6. Drafting a clause that holds
- Name the competing activities covered, rather than the trade or sector generally.
- Identify the reference place of employment from which the fifteen-kilometre radius is measured.
- Set a duration of six months maximum, running from the effective date of termination.
- Recall the two triggering events: termination by the employee's act, or dismissal for gross misconduct.
- Provide, where appropriate, for financial consideration and the option to waive.
On the contract's other clauses, see 1. Open-Ended Contract.
Key takeaways
| The rule | What it implies |
|---|---|
| The post-contract clause is void in principle | It is valid only within the statutory bounds |
| Six months maximum | Beyond that, the clause falls |
| A 15-kilometre radius around the place of employment | A nationwide scope has no effect |
| Only two triggering events | Termination by the employee's act, or dismissal for gross misconduct |
| During the contract, the rule applies without a clause | Outside activity is permitted if it does not compete |
| The sanction is judicial | Damages set by the court, loss to be demonstrated |