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In employment relationships involving strategically significant roles, the protection of corporate interests cannot be entrusted to generic formulas or standardised contractual clauses. Two instruments, more than others, shape the delicate balance between the employee's professional freedom and the employer's need for protection: the duty of loyalty during the employment relationship and the post-termination non-compete covenant.
A recent judgment of the Court of Appeal of Rome, Labour Section (No. 3372 of 25 October 2025), offers a valuable opportunity to reflect on the conditions that make these tools genuinely effective and on the factors that, conversely, make them weak or even counterproductive.
The duty of loyalty under Article 2105 of the Italian Civil Code is often invoked instinctively whenever overlapping market dynamics, previous professional relationships or parallel activities raise doubts about an employee's neutrality. Yet the law is unequivocal: a breach cannot be presumed, nor can it be inferred from a mere suspicion that the employee might be involved in related business spheres. The employer must be able to anchor any concern to a concrete, identifiable and properly substantiated fact. In the absence of evidence of conduct capable of harming the undertaking or favouring a third party, the duty of loyalty is not breached. For employers, this means that the first step is not to react but to understand, not to contest but to verify, not to sanction but to document. Only a precise reconstruction of events allows one to distinguish between conduct that is lawful and conduct that is genuinely detrimental.
The issue of non-compete covenants is even more delicate, because here the employer's need for protection directly intersects with the employee's freedom to continue practising their profession once employment ends. Experience shows that the attempt to "shield" the company by imposing extensive, prolonged or territorially excessive restrictions almost always weakens the instrument rather than strengthens it. A covenant that prevents the employee from exercising their professional skills within an excessively broad field, or that binds them beyond what is necessary to safeguard the employer's legitimate interests, risks being deemed disproportionate and therefore legally ineffective. The proportionality between the scope of the restriction, its duration, the relevant geographical area and the consideration payable is what determines the enforceability of the clause. If even one of these elements is unbalanced, the entire covenant loses strength. Protection in this area does not arise from the breadth of the restriction but from its precision: defining what must genuinely be protected, for how long, and within which competitive context.
From this perspective, important practical considerations emerge. An effective corporate HR policy does not treat the duty of loyalty and the non-compete covenant merely as instruments to be deployed at the end of the relationship, but as components of organisational design. An employer wishing to protect itself must identify which information constitutes a competitive advantage, which commercial relationships represent strategic assets, and which roles may give rise to overlaps with external activities of the employee. This requires dialogue, mapping, and training for HR staff and line managers. It also requires an early understanding of whether the employee performs, or intends to continue performing, parallel engagements, participates in other professional ventures, or maintains commercial relationships with subjects whose interests may diverge from those of the employer. In this context, prevention is not optional: it is essential.
Equally important is the need to avoid recurrent errors. Standardised clauses that bear no relation to the employee's actual role are often the most vulnerable. Overly broad prohibitions, drafted under the assumption that "the more you restrict, the safer you are" typically prove ineffective. Disciplinary actions expressed in formulaic language and unsupported by specific facts are likely to be dismissed. Every relevant decision must rest on a reconstruction that is verifiable, coherent and properly evidenced. A well-drafted clause does not require force to withstand scrutiny; its logic is sufficient.
These are the most valuable insights drawn from the judgment under consideration. They illustrate what it means to develop an HR strategy capable of preventing rather than merely managing critical issues. At the heart of effective protection lies proportionality: precise rules, justified restrictions and informed contractual choices. This is the approach that strengthens the employment relationship in strategically sensitive positions and enables the employer to safeguard what truly matters, without unduly compressing the employee's professional freedom. In this field, genuine protection is a matter of balance, method and the ability to anticipate risks before they crystallise into problems.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
