This research paper examines the issue of contractual restrictions on undertaking by an employee additional professional activity of a non-competitive nature with regard to the current employer. This issue has been a subject of dispute among labour law scholars for many years. Research in this area has become newly relevant due to recent amendments to the provisions of the Labour Code as a result of the implementation in the Polish legal system of Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union. As a result, Article 261 § 1 was introduced in the Labour Code, in which a prohibition was expressly stated, addressed to the employer, to prohibit the employee from taking up and remaining in additional employment. The legislature thus reinforced the employee’s freedom to undertake additional employment and emphasized the primacy of freedom of labour over protection of the interests of the employer against the uncompetitive additional activity of the worker, which could potentially undermine these interests. However, the content of the cited regulation raises interpretive questions as to whether the prohibition set out therein applies only to unilateral action by the employer or also to contractual terms agreed between the employee and the employer in this respect. Providing an answer to the above question, apart from its legal doctrinal value, is also of significant importance for the practice of legal transactions in Poland.
Łukasz Bolesta (Thu,) studied this question.