The day of concluding the employment contract, the day of entering into employment and the day of commencing work - what are the differences?
The day on which the employment contract is concluded is usually also the day when the employment relationship is entered into and thus starts work. However, the employer and employee may decide otherwise. They are allowed to do so by art. 26 of the Labor Code, which states that the employment relationship is established on the date specified in the contract as the date of commencement of work, and if this date is not specified - on the date of conclusion of the contract.
The date on which the employment relationship is established
Pursuant to Art. 22 § 1 of the Labor Code, by establishing an employment relationship, the employee undertakes to perform work of a specific type for the employer and under his management and at the place and time designated by the employer, and the employer - to hire the employee for remuneration.
In the employment contract, the parties may define the date of the employment relationship, indicating the date of the contract or a later date.
Establishment of an employment relationship on the date of conclusion of the employment contract
The employer and the employee concluded (signed) an employment contract on July 1, 2020 and indicated the same date as the date of commencement of employment - July 1, 2020. In this case, the employee's employment period with the employer began on the said date and from that date on both the parties to the contract have all obligations under Art. 22 § 1 of the Labor Code and specified in the detailed provisions of the Code.
The method of determining the date of entering into an employment relationship described in the above example is most often used and - due to its simplicity (the same date of concluding a contract and entering into an employment relationship) - it does not pose any problems in the practical implementation of the provisions of the contract.
Establishing an employment relationship after the conclusion of the employment contract
If, in the employment contract, the parties agree that the employment relationship will be established on a day later than the date of conclusion of the contract, then in the period from the date of conclusion of the contract to the date of entering into the employment relationship, the employer and employee are generally not bound by the obligations set out in Art. 22 § 1 of the Labor Code. This mainly concerns the obligation to perform work and the payment of remuneration. However, some obligations or rights may be exercised during this time, e.g. the right of either party to terminate the employment relationship. As stated by the Supreme Court in the judgment of 29 October 2007, II PK 56/07, the possibility of terminating an employment contract does not depend on establishing an employment relationship between the parties (commencement of the employment period). It is enough that the parties have concluded an employment contract - it can be terminated (terminated), even if the date of entering into the employment relationship has not yet come.
Sometimes the future parties to the employment contract decide to conclude a preliminary contract in advance, in which one or both parties undertake to conclude an employment contract (promised contract) at a later date.
If the time limit within which the promised contract is to be concluded has not been specified, it should be concluded within the time limit set by the party entitled to request the conclusion of the promised contract. If both parties are entitled to do so and each of them has set a different time limit, they are bound by the time limit set by the party that previously made the relevant declaration. If, within one year from the date of concluding the preliminary contract, the deadline for concluding the final contract has not been set, the conclusion of the contract may no longer be demanded.
The parties concluded a preliminary contract, in which they agreed that one of them - the future employer - undertakes to conclude an employment contract with the other party (future employee) within 3 months from the date of the preliminary contract. After 2 months, and thus keeping the agreed deadline, the employer declared its readiness to conclude an employment contract, and then it was signed by the employer and the employee. Thus, the preliminary contract was performed by concluding a promised contract - an employment contract.
Consequences of not concluding a promised agreement
The preliminary agreement is civil law (see Art. 389 of the Civil Code). Therefore, in the event of avoidance of the conclusion of the promised contract by the party (parties) on which the preliminary contract imposed such an obligation, the other party, in accordance with Art. 390 of the Civil Code, has the option to demand compensation from her, i.e. to compensate for the damage she suffered because she was counting on the conclusion of the promised contract.
The parties signed a preliminary contract in which both agreed to conclude an employment contract on the indicated date. However, when that day came, the employer told the person who was to become his employee (Mr. A) that he had changed his mind and was not going to hire her anymore. Therefore, Mr A, who, on the basis of the concluded preliminary contract, was hoping to establish an employment relationship with him, stated that the refusal to employ him exposed him to harm, as he had already terminated the employment contract with his previous employer and currently has no source of income. However, the employer, disregarding this argumentation, did not sign an employment contract with Mr. A. Consequently, Mr A asked the employer to pay compensation for failure to perform an obligation under the preliminary contract. The case went to the court, which awarded Mr A damages in an amount which had been determined taking into account the circumstances of this particular case. Start a free 30-day trial period with no strings attached!
Is concluding a preliminary contract purposeful?
Since it is possible to conclude an employment contract with an indication of the later date of establishing the employment relationship, i.e. the date on which the obligations and rights of the parties to this relationship arise, it does not seem advisable to precede the conclusion of the employment contract with a preliminary contract.
The future employer on June 15, 2020 informed the candidate for employment that he intends to establish an employment relationship with him on September 1, 2020. The candidate, however, would like to have some guarantee that this will actually happen. Therefore, the parties could conclude a preliminary contract in which they would undertake to conclude an employment contract on September 1, 2020, and then - conclude a promised contract on that date. However, a simpler solution is to conclude an employment contract immediately, specifying the date of entering into employment on September 1, 2020. The parties have chosen the simpler option.
Day of commencement of work
According to Art. 26 of the Labor Code, the date of commencement of work indicated in the employment contract is the same as the date of entering into the employment relationship. This is even the case where the employment relationship is established starting from a non-working day. The aforementioned provision does not make the establishment of an employment relationship conditional on its actual commencement by the employee (see the judgment of the Court of Appeal in Katowice of January 5, 2017, III AUa 2337/15).
Pursuant to Art. 29 § 1 point 5 of the Labor Code, the indication of the date (day) of commencement of work is one of the obligatory elements of the employment contract. If this deadline is not specified, pursuant to Art. 26 of the Labor Code, the date of commencement of employment is the date of conclusion of the employment contract.
The Labor Code, distinguishing the concepts of the day of concluding the employment contract, the date of entering into employment and the date of commencement of work, leaves it to the employer's and the employee's decision whether all the aforementioned days will be one and the same calendar day or not. As indicated, the date of concluding the contract may also be the date of entering into the employment relationship. However, the parties may decide in the contract that the employment relationship will be established some time after the conclusion of the contract - then the employment relationship is established on the date indicated in the contract as the date of commencement of work.