The post-employment non-compete agreement serves as an effective tool for safeguarding key information for the employer and maintaining the stability and competitiveness of the business.
During Employment
Employees, based on the labour code, are obligated to, among other things, care for the well-being of the workplace and adhere to the provisions of the employment contract and internal regulations applicable to the employer. Typically, confidentiality clauses and prohibitions on working for competing entities are already included in the employment contract.
However, after the termination of the employment contract, the employee is no longer bound by the provisions of the employment contract or the obligations arising from the labour code. Therefore, it is crucial to establish a non-competition agreement after the cessation of the employment relationship.
Identifying Employees for the Non-Compete Agreement
Before agreeing a post-employment non-compete agreement, it is recommended to analyze the organizational structure, with particular attention to positions where employees have access to key information. If disclosing such data could potentially harm the employer, it is worthwhile to consider entering into a non-competition agreement after the cessation of the employment relationship with these employees.
It’s important to note that in this context, there are no limitations. On the contrary, it is assumed that the statutory concept of “particularly important information” is subjective and depends on the individual conviction of the employer. In other words, the employer decides with which employees to enter into a non-compete agreement.
Validity and Elements of the Non-Compete Agreement
The post-employment non-compete agreement requires written form under penalty of invalidity. Such an agreement should include provisions regarding, among other things:
- the period of the non-compete obligation,
- the amount of compensation due to the employee from the employer,
- the definition of the non-compete restriction, and
- potential contractual penalties.
Employee Refusal and Additional Provisions
Refusal by an employee to sign a post-employment non-compete agreement may constitute a justified reason for terminating the employment relationship with notice. In such cases, the employer can cite a loss of trust in the subordinate, as the refusal may be indirect evidence of disloyalty or a willingness to undertake actions detrimental to the employer’s interests.
It’s important to note that the employee’s refusal to sign an agreement prohibiting competitive activities will not constitute a justified reason for termination if its provisions are inconsistent with the labour code.
Important Additional Clauses
It is possible to include in the non-compete agreement provisions allowing the employer to withdraw until the termination of the employment relationship. If the employer exercises this right, the agreement is treated as if it were not concluded. Such provisions are particularly helpful when the employee is gradually excluded from new projects, and the information they possess ceases to be considered crucial by the employer.
Dispute Resolution and Documentation
By seeking a non-compete agreement, the employer protects its interests. If the employer later accuses the former employee of violating the non-compete agreement after termination of employment, the burden of proof lies with the employer. Therefore, it is essential to ensure that the agreement’s provisions effectively protect the employer and, if necessary, to secure evidence of potential violations by the former employee.
For further details regarding the non-compete agreement, we cordially invite you to contact us.
Author:
Maria Aleksiejak, Trainee attorney-at-law (PL)
