POLAND Law and Practice Contributed by: Magdalena Zwolińska, Aleksander Płaza, Sylwia Miros and Karolina Rogatko, HRLS Zwolińska & Zwoliński
Generally, an employee’s financial responsibility for damages to the employer is capped at the equivalent of three months’ salary. However, this limitation does not apply if the damage was intentional; in such cases, the employee may be held fully liable. These liability rules are only valid during the period of employment. Additionally, employment contracts cannot include clauses that impose contractual penalties for viola - tions of employee duties during the term of employ - ment. However, such penalties may still be imposed for breaches of obligations that continue after employ - ment ends, such as non-compete clauses or confi - dentiality agreements. In 2023, amendments to the Polish Labour Code intro - duced a general ban on exclusivity clauses, mean - ing that employers cannot prevent employees from taking up additional jobs or professional activities, unless such work is competitive in nature. Restric - tions related to competition remain permissible under specific conditions. To be valid, a non-compete clause must be agreed upon with the employee – either as part of the employ - ment contract or in a separate agreement. It may apply during employment and, where applicable, after the contract ends. For post-termination restrictions, the agreement must define both the duration of the restriction and the compensation due to the employee for compliance. 2. Restrictive Covenants 2.1 Non-Competes Non-Competes in Employment Contracts The statutory minimum for such compensation is 25% of the employee’s previous salary (including selected bonuses), paid over the period of the restriction. How - ever, in practice – especially for senior or strategic roles – employers often offer higher rates, typically between 50% and 100% of prior earnings. To maintain flexibility and manage costs, it is recom - mended that non-compete agreements include pro - visions allowing the employer to unilaterally release the former employee from the restriction – either by withdrawing from or terminating the clause with prior
notice. This prevents unnecessary compensation pay - ments if the employer no longer sees value in enforc - ing the restriction. Non-Competes in Civil Law Contracts When non-compete clauses are included in civil law contracts (eg, B2B contracts), there is no statutory obligation to provide compensation. However, court rulings vary, and some decisions suggest that the absence of compensation could make such clauses unenforceable if deemed contrary to principles of social fairness. 2.2 Non-Solicits Non-Solicits in Employment Contracts Although the issue of non-solicitation is not regulated by the Polish Labour Code, in practice employers con - clude relevant agreements with employees containing this clause. The issue of non-solicitation is regulated by the Act of 16 April 1993 on combating unfair com - petition. An act of unfair competition in this regard is: • inducing a person performing work for an entre - preneur, on the basis of an employment relation - ship or other legal relationship, to fail to perform or improperly perform their employee obligations or other contractual obligations, in order to gain an advantage for themselves or third parties or to harm the entrepreneur; or • inducing the entrepreneur’s customers or other persons to terminate a contract with them or to fail to perform or improperly perform a contract in order to gain an advantage for oneself or third par - ties or to harm the entrepreneur. Inducement is behaviour by an employee aimed at achieving a specific result and directed at an individual addressee or addressees. As a rule, therefore, incite - ment to disregard contracts concluded with the entre - preneur that is addressed to the general public is not considered inducement. Non-Solicits in Civil Law Contracts A non-solicitation clause may also be included in civil law contracts – eg, commission contracts or B2B con - tracts.
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