Non-Solicitation Clauses

In industries with limited access to employees with the required skills, it is extremely important to properly regulate relations with contractors with regard to the takeover of key employees. This is because, in today’s market reality, employee poaching is becoming an increasingly common practice. 

In relations with employees or contractors, it is possible to conclude a separate non-competition agreement including restrictions on taking on additional employment during the cooperation and afterwards. The admissibility of such restrictions does not raise any major doubts. At the same time, the introduction of a non-solicitation clause providing for contractual penalties in the event that the employee is poached during or after the term of the contract is a common practice. This raises questions about the admissibility of such clauses and the enforceability of sanctions in the event of a breach.

There is no uniform stance on this issue.

On the one hand, it is argued that such clauses are contrary to the rule of law and the principles of social co-existence. This thesis suggests that their inclusion in model contracts is therefore prohibited, and that if a contract containing such clauses is concluded, they are invalid. As an argument in support of this, it is pointed out that non-solicitation clauses are contrary to the principle of the freedom of contract, as such a prohibition in a contract between contractors affects the situation of employees, “by limiting their right to right to freely choose employment,” which consequently violates the principle of the freedom of work, which is also a constitutional principle. It is further pointed out that such provisions also infringe on the employer’s freedom of choice of employees, resulting in a violation of the principle of the freedom of labour on the employer’s side of the employment relationship, as well as the principle of the freedom to conduct business, which has its source in the Polish Constitution.

On the other hand, non-solicitation clauses are considered to be a lawful restriction in employment and do not violate any statutory and constitutional norms, in particular where the purpose of such clauses is to protect company secrets. This is because there are no legal obstacles for contractors in certain situations to regulate the protection of confidential information contractually, entering into mutual obligations in this respect and imposing sanctions for a breach of such obligations with, for example, the obligation to pay a contractual penalty. It is true that an obligation not to employ employees of the other party for a certain period of time undoubtedly restricts the freedom of the party on which the obligation was imposed. However, this cannot be seen as an infringement of the rules of economic freedom, since the party itself, exercising its autonomy of will, undertakes not to take certain actions, while the obligation, in practice, has very little effect on the possibility of freely conducting its business activity.

It follows that the use of non-solicitation clauses in contracts governed by Polish law raises questions. It seems important to properly describe the purpose to be served by limiting the employment of the contractor’s employees. If this purpose is to protect business secrets/confidential information, there is a good chance that sanctions will be enforced in the event of a breach. In other cases, there is a risk that such clauses will be found to be ineffective.