Speaking of “loyalty” we usually mean two types of contracts. The first is a ban on competition, which may apply during or after the employment relationship. The second are contracts related to raising qualifications, under which the employer finances, for example, postgraduate studies or courses, expecting in return that the employee will work out a certain time – otherwise in the cases specified in the provisions he will have to return the costs incurred proportionally by the employer.
The fact that the loyalty agreement is not always as effective as the employer would like this is often the nuances. As emphasized by Magdalena Raniszewska, legal advisor and managing partner at the RBR office, basic formal errors are often a problem. In the case of an employment contract, a prohibition of competition must be included in writing. The lack of a handwritten signature or qualified electronic signature means that the clause is invalid.
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The content of the contract itself cannot be general. – If we enter that the employee is not allowed to provide competitive activities, but we do not clarify what it means to whom and to what extent, then such a clause is easy to undermine – explains the lawyer.
Raniszewska adds that companies often do not realize that A poorly constructed loyalka exposure to a loser process than actually protects business. He cites an absurd case with Software House, where an HR employee received a standard programming clause for the entire company. This example perfectly shows how ill -considered clauses, used according to one template, become legally worthless.
Duration of the contract and remuneration
An additional requirement is the clearly defined duration of the ban and the remuneration compensating restrictions. While during employment remuneration for work is sufficient as an equivalent, after the employee's termination ceases, at least 25 percent current remuneration.
Importantly, if the employer stops paying the fixed amounts, the ban on competition falls by virtue of law – but the obligation to pay not.
The Labor Code clearly says that the ban on competition after termination of employment must have a precise justification. It can only apply to employees who had access to particularly important information, the disclosure of which could expose the employer to damage. Automatic use of such clauses to all employees, regardless of the position, is a legal sell and is easy to undermine.
B2B – different form, different rules
Loyalty clauses also appear in civil law contracts, especially in B2B type cooperation models. Although formally providing services based on contracts are not employees, they may also be subject to restrictions, which leads to questions about the limits of contract freedom and proportionality of the clauses introduced.
Angelika Czarnecka, a legal advisor from the office of J.Dauman Legal, specializing in labor law, emphasizes that the principle of freedom of contracts, guaranteed by the Civil Code, gives the parties great flexibility in shaping mutual relations. However, even in purely business relationships, we must remember that the limit of this freedom are the provisions of the law and the principles of social coexistence.
– Although some courts are trying to transfer rules to civil law contracts from the Labor Code, such a procedure has no support in the regulations. Therefore, it becomes crucial to balance the interest of both sides – notes the lawyer.
The ban on competition without a monetary equivalent may be considered valid even in the B2B relationship – if it is rationally justified and will not violate the essence of the legal relationship. However, too far -reaching restrictions – e.g. prohibiting the profession in a specific industry for a long time – can be considered invalid, precisely because of their gross disproportion.
In practice, this means that it is worth analyzing the content of the contract each time, also in relations between entrepreneurs, while maintaining a healthy balance between protection of the interests of one side and professional freedom of the other.
Training agreements – an employer's investment in our development
Agreements related to raising qualifications financed by the employer also require precise formulation.
It is worth emphasizing that The Labor Code provides for a maximum of a three -year period during which the employee may be obliged to stay in the company. Time of study or training may, but does not have to include this pool.
If the employee's terms failure to meet the terms of the contract or disciplinary dismissal, the reimbursement is calculated in proportion to unused time – if someone leaves after a few months, he only reflects part of the expenditure.
These types of contracts are security for companies, but, as experts admit, from the employee's perspective they are not treated as a burdensome obligation, because they give real opportunities for development.
However, Magdalena Raniszewska sensitizes that elements of standard implementation of the employed for work are not the basis for using such a clause, although there are companies that try to push such a record.
Although the topic of loyalty clauses seems difficult, both experts emphasize that one thing is: adequacy. Agreements must correspond to reality and be adapted to the position, scope of duties and market situation. Automatic copying of patterns and throwing all employees into one template not only does not protect the employer, but even increases the risk of challenging the contract before the court.
Adequacy of the recording under the magnifying glass and threatening the employee
Angelika Czarnecka draws attention to a disturbing tendency, constructing loyalty agreements not as a real tool to protect the interests of the company, but as a preventive measure – to discourage you from leaving or limiting professional activity after cooperation.
– I am increasingly encountering contracts concluding provisions constructed in a clearly exaggerated manner: we are talking about grossly excessive contractual penalties, excessively extended during the bans of competition, or their disproportionately wide range.
The expert warns, however, that this approach can bring the opposite effect to the intended one.
– These types of clauses are relatively easy to undermine in court – especially if they are disproportionate, detached from market reality or grossly violate the balance of the parties. In practice, this means that even if they are formally in a signed document, their enforcement may prove ineffective. In extreme, the court may consider them invalid on the basis of a general clause violation of the principles of social coexistence – explains the lawyer.
– It is always worth coming back to the question: why do we limit someone? If there is no actual know-how to protect, then maybe there is no reason to introduce a ban on competition-adds Magdalena Raniszewska.
As Angelika Czarnecka reminds, both under an employment relationship and in civil law relations, loyalty clauses may not take the form of a complete ban on undertaking any professional activity or cooperation with other entities. The more one -sided and restrictive clause, the greater the risk that it will be considered ineffective.
A well -constructed loyalty agreement should not be a tool of control or coercion, but a form of balance – securing the company's legitimate interests, while respecting the freedom of the other party.
