Taking over employees of a competitive workplace - consequences


One of the basic principles in business transactions related to enterprises is the change of employees and their rotation. The basis for this state of affairs can be found in many factors, be it in the market situation, in organizational changes of a given enterprise or even in restructuring changes. It is worth analyzing the situation when employee changes concern entities that operate on a competitive level.

In a situation where the rotation begins to turn into unfair taking over of employees of a competing workplace, then we may be dealing with an act of unfair competition.

Taking over employees of a competitive workplace as an act of unfair competition

An act of unfair competition is an act that is against the law or decency, if it threatens or violates the interest of another entrepreneur or customer.

The acts of unfair competition are in particular: misleading designation of a company, false or fraudulent designation of the geographical origin of goods or services, misleading designation of goods or services, breach of business secrets, inducement to terminate or non-performance of the contract, imitation of products, slander or unfair praise, obstructing access to the market, bribing a person holding a public office, as well as unfair or prohibited advertising, organizing an avalanche sales system, conducting or organizing activities in a consortium system and unjustified extension of payment terms for delivered goods or services rendered.

An act of unfair competition is also considered to be an unfair influence on contractual relations, the manifestation of which will be the taking over of employees of a competing workplace, using techniques and mechanisms that violate decency or are against the law.

Inducing an employee to behave in certain ways as an act of unfair competition.

Pursuant to Art. 12 sec. 1 of the Act of April 16, 1993 on Combating Unfair Competition, it is an act of unfair competition to persuade a person providing work to the entrepreneur, on the basis of an employment relationship or other legal relationship, to non-performance or improper performance of employee duties or other contractual obligations, in order to gain benefits yourself or third parties or harms the entrepreneur.

The protection guaranteed by the legislator under the aforementioned provision boils down to ensuring the proper functioning of the entrepreneur's contractual relations, protecting him against non-performance or improper performance of the contract or termination of the contract, which would occur in connection with the actions taken by a third party. The legislator made the durability of contractual relations a protected good by forbidding inducing the termination of contracts by persons providing work to the entrepreneur.

Therefore, the subject of a tort in this provision is a specific type of behavior, which consists in persuading the competitor's employees to non-performance or improper performance of employee duties or other contractual obligations. Each time, the inducement must be aimed at benefitting oneself or third parties or harming the entrepreneur.

Example 1

Encouraging the employee responsible for the documentation necessary to resolve the tender not to send it to the appropriate authority on time, as a result of which the offer will not be taken into account in the competition, and the persuading contractor will thus be able to win the tender. Dishonesty manifests itself here in disturbing the harmonious fulfillment of the undertaken obligations, which may result in a reduction of the market power of the entrepreneur affected by such an act.

It is emphasized in the jurisprudence that the provisions of the Act on combating unfair competition referred to in Art. 12 (2) are intended to protect the market, and thus the entities participating in them.

Of course, competition implies rivalry, but that rivalry should not be distorted. The assessment of the specific behavior of the entrepreneur must take into account the impact of this behavior on market relations. In practice, it is necessary to demonstrate not only the reprehensible conduct of the entrepreneur, but also its consequences or the threat of their occurrence, causing disruption of the work of another entrepreneur.

The fact of abuse of the principles of fair competition requires firm and certain proof, and the burden of proving this lies with the entity seeking legal protection. In a situation where the entrepreneur finds out that another entrepreneur has taken steps to persuade the employee to commit an act of unfair competition, in order to demand legal protection in this regard, he must prove that such actions have been taken.

Also, persuading an employee to terminate an employment contract, not only failure to perform it, must be directional, in order to benefit the inciting person or another person or to cause damage to the entrepreneur who employs the employee.

Action taken with full awareness of this goal requires procedural proving and cannot be based solely on the assumptions of the entrepreneur.

Sometimes it may be difficult to distinguish the boundary of a tort from an act permitted in business transactions, therefore each case should be considered carefully and individually.

Example 2

The mere submission of a competitive offer to the entrepreneur's employee does not constitute an inducement to non-performance or improper performance or termination of the contract, but only if they are consistent with good practice and the law, as well as with the principles of fair competition and freedom of economic activity.

If, as a result of such an offer, the employee terminates the employment contract, it should not, in any case, be associated with an act of unfair competition, as such behavior resulting from the sovereign decision of the employee providing work for the entrepreneur should not be considered as such.

Consequences of committing an act of unfair competition

If a third party is committed to persuading employees of a competing workplace to terminate the contract or not to perform it, it is possible for such entity to incur civil liability.

In the event of an act of unfair competition, the entrepreneur whose interest has been threatened or infringed upon, may request:

  1. cessation of unlawful activities;
  2. removing the effects of prohibited activities;
  3. submitting a single or multiple declaration with appropriate content and in an appropriate form;
  4. compensation for the damage caused, on general terms;
  5. issuing unjustified benefits, on general terms;
  6. adjudication of an appropriate amount of money for a specific social purpose related to supporting Polish culture or protection of national heritage - if the act of unfair competition was culpable.

The indicated provision contains a precisely defined catalog of claims due to the aggrieved entrepreneur and constitutes a special regulation in relation to the provisions of, for example, the Civil Code. Therefore, the liquidation of the effects of an act of unfair competition should follow this regulation. In order for a third party to be liable for an act of unfair competition, it is necessary to bring an action against that person. An entrepreneur pursuing any of the claims referred to in Art. 18 sec. 1 of the act, apart from showing the defendant's behavior qualifying it as an act of unfair competition, it should also prove that its interest has been threatened or infringed.


Material prepared by the team of "Tak Prawnik".

The owner of the brand "Tak Prawnik" is BZ Group Sp. z o.o.