For the High Court, l The clause that grants power only to the employer is void, forcing the company to compensate the worker.

The Supreme Court resolves the appeal for the unification of doctrine against ruling No. 371/2022 issued by the Social Chamber of the Superior Court of Justice of Madrid, of April 25, which annuls.

The worker voluntarily left the company and the company informed him that it would not make use of the non-competition agreement and, therefore, would not pay him any amount for this concept, which is why he filed the corresponding lawsuit.

In the first instance, the Social Court No. 15 of Madrid in a ruling of October 25 upheld said claim in its entirety, in which it claimed 80,000 euros under the non-competition agreement. The Court considered that the company, under the protection of a contractual clause, cannot be authorized to unilaterally terminate the post-contractual non-competition agreement, since according to article 1256 of the Civil Code, the validity and compliance of contracts cannot be left to the discretion of one of the contracting parties.

Specifically, the post-contractual non-competition agreement signed by the company and worker included, in addition to the economic compensation provided for in article 21.2.b) of the Workers' Statute in favor of the worker, the following stipulation: "However, both parties agree that the Company, in response to the assessment it makes regarding the concurrence of an effective industrial or commercial interest, may choose whether or not to apply this clause, so that if it chooses not to apply the clause, it must notify the manager of said circumstance. contemporaneous with the termination of the contract or, failing that, within a maximum period of fifteen business days following the effective date of the termination of this contract. In this case, the manager will be released from the restriction of activity derived from this clause and will be able to develop the professional activity freely and without any limitation and consequently the company will not have to pay any amount for the concept provided for in this clause."

However, the TSJ of Madrid in ruling 371/2022 of April 25 upheld the appeal filed by the company, absolving it by understanding that there is no contractual obligation that unilaterally ceases to be fulfilled, and therefore article 1256 of the Civil Code is not applicable, but rather there is the exercise of a contractual option.

However, the High Court understands that the bilateral nature of the post-contractual non-competition agreement prevents it from being subject to the subsequent will of the company, and considers void the clause that attributes this power, exclusively, to the person who occupies the position of employer. And the lower court ruling that fully upheld the worker's claim in which he claimed 80,000 euros in compensation under said agreement is declared final.