Transfer of a work establishment to another employer and a agreement on prohibition of competition

In the light of the Labour Code (art. 101[1] and art. 101[2]) we can distinguish two types of  agreements on prohibition of competition: during the employment relationship and after termination of the employment relationship.

However, in legal doctrine and judicial decisions on the issue raises serious doubts as to the application of the art. 23[1] of the Labour Code to the agreement on prohibition of competition after termination of the employment relationship. This provision constitutes automatic and ex lege entry of the new employer into rights and duties of the previous employer in case of  transfer of a work establishment. In other words, is the new employer obliged to pay ex-workers provisions on the period of prohibition of competition, if they concluded the anticompetitive agreement with the previous employer.

It seems that the Supreme Court decided in the resolution of 6th May 2015 (ref. no. III PZP 2/15) to dispel partially the doubts. It stated that solution envisaged in the abovementioned art 23[1] could not be applied to the agreement on the prohibition of competition after the termination of employment relationship. Such agreements are not an element of employment relationship, therefore the rule of art. 23[1] is not applicable.

Nevertheless it must be noted that some doubts on the future existence of anticompetitive clause binding on the parties still remain.   

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