Non-solicitation in Poland
What is a non-solicitation clause?
The non-solicitation clause is a popular element in contracts between entrepreneurs. It appears especially in contracts where one of the parties uses the knowledge and skills of highly qualified employees of the other party, e.g. contracts for the provision of legal services, IT services or accounting services. This causes the risk that the other party will want to hire a qualified employee on their own – bypassing the contractor’s services. The clause is intended to protect against this type of action.
Polish regulation of non-solicitation
The Polish Civil Code does not regulate the non-solicitation clause in any way. It is a creation that appeared in Polish contracts due to inspiration from foreign regulations. However, it is not the case that we will not find regulations on this subject anywhere in Polish law. The equivalent of such a clause in Polish law is Art. 12 of the Act on Combating Unfair Competition.
This article recognizes as an act of unfair competition, inter alia, inducing a person providing work for the entrepreneur, on the basis of an employment relationship or other legal relationship, to non-performance or improper performance of employee duties or other contractual obligations, in order to benefit himself or third parties or to harm the entrepreneur.
Limits of non-solicitation clause
It is recognized that the above-mentioned Article 12 sets the boundaries of the non-solicitation clause in Polish law and provides guidance on how this clause should be formulated. This means that entrepreneurs may limit each other only in persuading employees of the other party to fail to perform or improperly perform their duties, but they may not prohibit each other from hiring employees of the other party.
It is easy to see that the article does not mention anything about persuading an employee to terminate an employment contract. Here, the issue is debatable – out of caution, however, the representatives of the doctrine assume that intentional inducement to terminate an employment contract falls within the prohibition set by this provision.
However, it is important to distinguish between intentional inducement to terminate an employment contract and offering a job to a candidate who responds to our advertisement. It is assumed that inviting such an employee for an interview and submitting an offer is not the same as intentionally persuading him to terminate the contract – and therefore does not constitute a breach of the non-solicitation clause.
Errors in formulating the clause
Entrepreneurs who, when formulating a non-solicitation clause, include a prohibition on employing employees, run the risk that such a clause will be considered contrary to applicable regulations and principles of social coexistence, and thus – invalid.
According to the current jurisprudence – a clause with such wording constitutes an illegal limitation of the possibility of employing an employee in a contract between third parties, “behind” the employee’s back, so to speak. According to the latest rulings in Poland, this is not only against the law and rules of social coexistence, but also constitutes a violation of the constitutionally guaranteed freedom of work.
Such an error in the wording of the clause may cost the entrepreneur a lot – if in a lawsuit for the payment of a contractual penalty the clause is declared invalid, the contractual penalty for its violation will also not be enforceable, and thus the court will dismiss the claim. For this reason, it is important to ensure that the wording of the clause already complies with the law at the stage of drafting the contract. A properly formulated clause provides protection for both parties to the contract.
Other ways to be protected
The other way for the employer to protect himself against employees leaving for a contractor is to sign a non-compete contract with employees. This method is fully compliant with the law and does not violate the guarantee of freedom of work – the employee voluntarily agrees to the restrictions by signing a non-competition agreement. At the same time, in the event of a non-competition agreement after the termination of the employment relationship, the employee will receive appropriate remuneration for it.
Regardless of which solution the entrepreneur decides on – only the appropriate wording of the contract can make it fully effective and enforceable.
In the case of more detailed questions regarding the preparation of contracts with employees and business partners, we encourage you to contact specialists from the labor law department.
Read more about labour law in Poland.