Accumulation of salaried activity and self-employment

An employee can very easily work as a self-employed person. They are not technically required to request authorization from their employer to opt for self-employed status, but we advise all future business creators or buyers to be honest with their employer and proceed with the verification of what is provided for in their contracts. However, to be self-employed and employed, you must respect certain conditions:

• Do not carry out the professional activity provided for in your employment contract with your employer's clients without the latter's consent.
• The independent activity must be carried out outside working hours for the employer.
• It is necessary to take into account the contractual limits of the employee which may include prohibitions or restrictions concerning the creation of another business.

2. The obligations of the self-employed employee during their employment

There are two main ones in terms of accumulation, the obligation of loyalty and the exclusivity clause.THE OBLIGATION OF LOYALTYThe employee is subject, towards his employer, to an obligation of loyalty. This obligation includes a duty of loyalty, confidentiality and non-competition. The obligation of loyalty must be respected throughout the duration of the employment contract but also, in certain cases, after the termination of the contract. Non-compliance is punishable by multiple disciplinary and even criminal sanctions. This obligation of loyalty finds its basis in the civil code and in the labor code

• In the civil code, article 40 specifies that the contract is an agreement of will generating obligations. The employee who is therefore bound to his employer by a contract must comply with the obligations provided for in the contract.

• And in the French labor code, which the Senegalese judge seems to align with, it is provided that: “The employment contract is executed in good faith. “The exercise of a commercial activity competing with that of your employer is prohibited (same field of activity, same clientele, etc.) because all employees are bound by an obligation of loyalty towards their employer.

This requirement of loyalty which arises from the prohibition of competing with one's employer applies even if a non-competition clause is not provided for in the employment contract.

• Civil Code which stipulates: “conventions bind not only what is expressed therein, but also all the consequences that equity, custom or the law give to the obligation according to its nature” as well as in the article
• Labor Code which states: “The employment contract is executed in good faith. “The exercise of a commercial activity competing with that of your employer is prohibited (same field of activity, same clientele, etc.) because all employees are bound by an obligation of loyalty towards their employer.

The exercise of a commercial activity competing with that of your employer is prohibited (same field of activity, same clientele, etc.) because all employees are bound by an obligation of loyalty towards their employer. This prohibition applies even in the absence of a non-competition clause in your employment contract.Legal obligation of loyalty when creating a self-business

Clause to respect	Duty of loyalty
Object	The employee must not harm the reputation or the proper functioning of the employing company throughout the execution of the employment contract, in particular through acts of denigration or competition contrary to the interests of the company.
Examples of prohibitions	Harmful remarks to a third person Unauthorized use of employer property for private purposes Punishable acts against the employer Poaching of workers and clients of the employer Offering or accepting bribes Paid work that competes with the employer or reduces the employee's efficiency
Validity conditions	This obligation prevents the employee from carrying out a self-employed activity competing with that of his employer. This obligation is independent of any non-competition clause which only comes into play after the termination of the contract.
Special cases and exemptions	It is nevertheless possible to carry out preparatory acts for the creation or takeover of a company or self-business before the end of the employment contract if: No act of unfair competition is committed These acts are not carried out during working time
Sanction	Court. Sup JUNE 23, 2010: The worker is bound by an obligation of loyalty towards his employer and the concealment of a fact or an act relating to the execution of the employment contract or having an impact on it justifies his dismissal.

 THE EXCLUSIVITY CLAUSEThe exclusivity clause must appear in an employment contract (or an amendment) written and signed by the employee in order to be enforceable against him. The signature demonstrates the employee's acceptance of the clause and all its effects and consequences. According to case law, the exclusivity clause is only valid if it is essential to the protection of the legitimate interests of the company, if it is justified by the nature of the task to be accomplished and proportionate to the aim sought. This clause cannot be applied to a part-time employee (Cass. Soc. July 11, 2000). To prevent any dispute, it is advisable to notify your employer of the creation or takeover of the company. In the event of a valid exclusivity clause, you can ask your employer to modify your employment contract.

Conventional clause to be respected	Exclusivity clause
Object	Clause of the employment contract by which the self-employed employee undertakes, throughout the execution of his contract, to work exclusively for the employer and for him alone and to have no paid professional activity outside of the company.
Examples of prohibitions	The exclusivity clause prohibits the employee from carrying out another professional activity, whether salaried or independent (including self-employment), for the entire duration of their employment contract: General: no accumulation of other salaried or non-salaried activity with the employment contract; Limited: no other salaried activity but possible to combine the employment contract with a self-employed activity on your own account; Very limited: no accumulation of another job of the same nature elsewhere.
Validity conditions	The social chamber of the Court of Cassation considers that an exclusivity clause is lawful under the following conditions: It must be essential to the protection of the legitimate interests of the company; It must be justified by the nature of the task to be accomplished; It must be proportionate to the aim sought.
Sanctions	Violation or non-compliance with this clause by the employee, even justified retrospectively and whatever the reason, may result in disciplinary dismissal by the employer.

 

2. The obligations of the self-employed person to be respected after employment contract

NON-COMPETITION CLAUSEThe non-competition clause is a provision provided for in the employment contract whose purpose is to prohibit a former employee, after leaving the company, from carrying out a competing professional activity which harms the interests of his or her employee. Former employer.Article 35 of the Senegalese labor code provides that the worker owes all his professional activity to the company unless an exception is provided for in the contract. But it is possible for the employee, unless otherwise agreed, to carry out any professional activity outside of working hours that is not likely to compete with the company or harm the proper execution of the agreed services. The article goes on to specify that any clause in an employment contract prohibiting the worker from carrying out any activity upon expiry of the contract is automatically void, except in the case where the termination is the fault of the worker. or results from gross negligence on the part of the latter. However, in this case, the ban can only relate to an activity likely to compete with the employer, it cannot exceed one year and can only apply within a radius of 50 kilometers around the workplace. The non-competition clause must allow the employee the possibility of carrying out an activity which is specific to him and therefore the prohibition only relates to an activity likely to compete with the employer.So if the contract does not provide otherwise, an employee can carry out other activities of the moment or this does not compete with the activity of the employer.

Clause to respect	Non-competition clause
Object	The non-competition clause finds its basis in the real damage suffered by the company in the event that the former employee carries out his activity in a competing company. Its aim is to protect the interests of the former employer and cannot result in prohibiting the employee from exercising their professional activity.
Examples of prohibitions	The employee, after leaving the company cannot, for example: Getting hired by a competing company Create a competing business.
Application conditions	The conditions for the validity of the non-competition clause are set out in Article 35 paragraph 2 of the Labor Code: – The nature of the activity – The time limitation – Case law adds a third condition linked to legitimate protection interests of the company It only applies to full-time contracts. “The non-competition clause, to be lawful, is subject to cumulative substantive and formal conditions that the parties to the employment contract must respect. She must : Be essential to the legitimate interests of the company in relation to the specificities of the employee's employment; Be limited in its application in time and space; Include for the benefit of the employee the payment of financial compensation proportionate to the harm that this clause has on the employee's freedom of work. This payment occurs after the termination of the employment contract and cannot be derisory or reduced since it is a replacement salary.
Special cases and exemptions	The non-competition clause does not apply during the duration of the employment contract It only takes effect in the event of termination of the employment contract due to the employee or gross negligence on their part. The clause does not apply to an employee dismissed for economic reasons or for slight negligence This clause has no effect if the termination takes place during the trial period. All conditions for application of the non-competition clause must be met. If one of them is missing, the clause is void. Possibility of requesting a written exemption from the employer. The employer can also waive the application of this clause. If the clause is poorly drafted and considered illegal.
Sanction	Permanent loss of the right to compensatory compensation, if provided for in the employment contract, collective agreement or amendment; Damages from the injured company Order to cease competing activity. Commitment to employee responsibility The judge's ban on continuing professional activity

 PROHIBITION OF UNFAIR COMPETITIONCivil Code : Any act whatsoever of man, which causes damage to another, obliges the person through whose fault it happened to repair it. Civil Code : Everyone is responsible for the damage they have caused not only by their own actions, but also by their negligence or imprudence.

Clause to respect	Non-competition clause
Object	An employee whose employment contract has ended is entitled to immediately enter the service of a new employer, or to carry out a competing activity on their behalf. He cannot be accused of exploiting the technical or commercial knowledge he acquired with his previous employer, unless he commits acts of unfair competition.
Examples of prohibitions	Unfair behavior characterizing misconduct and likely to damage the reputation or work of a company can vary: Acts of denigration, Imitation of the signs of a competing company, Search for business disorganization Commercial parasitism, Imprudence or negligence.
Application conditions	Unfair competition must meet two conditions: Proof of the existence of a prior competitive element. Proof of the disloyalty of the incriminated behavior.
Special cases and exemptions	A right to compensation exists even if the damaging event is not intentional. The injured party can therefore invoke unfair competition and it is up to the author of the damage to provide proof that his actions did not generate damage.
Sanction	Damages and interests for the harm suffered, Order to cease competing activity (see article 2 below).