Labor law provisions distinguish two types of the so-called non-competition. The first is the prohibition of any competitive activity during the employment relationship. Such a contract may be concluded by the employer with any employee.
The second non-competition clause may apply to an employee after termination of employment. The employer may then prohibit the performance of a competitive activity only by an employee who has access to particularly important information, the disclosure of which could expose the employer to damage.
Non-competition agreement, in addition to, inter alia, the scope of competitive activity which the employee should refrain from or the duration of this prohibition, should include information on the amount of compensation for compliance with the non-competition clause and the date and method of its payment. Compensation under such a contract must amount to at least 25% of the wage received by the employee before the termination of the employment relationship.
In the judgment of 4 July 2019 (III PK 85/18), the Supreme Court stated that in some cases the payment of compensation for non-competition after termination of employment should not take place. This will happen when the employee’s behavior is deemed to violate the socio-economic purpose of the law or the principle of social coexistence.
The employee’s behavior is reprehensible and meets these conditions, e.g. in the event that he has committed theft of property. Then, the payment of non-competition compensation will be considered an abuse of the law. It is a precondition, however, that his act is related to a non-competition clause.
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