Preliminary contract before the employment contract - everything you need to know
Currently, on the labor market, it is more and more common to encounter situations in which it turns out to be impossible to hire an employee immediately on the basis of an employment contract, because, for example, he is tied to the current employer with a six-month notice period. In this case, a preliminary contract may be signed with the future employee to ensure future cooperation.
Preliminary agreement in the Labor Code
The concept and conditions of the preliminary contract are not regulated directly in the Labor Code, while the possibility of its conclusion is specified in the Civil Code. Art. 300 of the Labor Code states that in matters not regulated by the provisions of the labor law, the provisions of the Civil Code shall apply accordingly to the employment relationship, provided that they do not conflict with the principles of labor law.
The Civil Code precisely defines the concept of a preliminary contract, where one or both parties undertake to conclude the promised employment contract. However, an important condition is to specify the provisions of the final agreement, in particular:
- type of work;
- place of work;
- remuneration for work corresponding to the type of work, indicating the components of the remuneration;
- working hours;
- date of commencement of work;
Pursuant to Art. 390 of the Civil Code, if the date of conclusion of the promised contract has not been specified, it should be concluded within the appropriate time limit set by the party entitled to request the conclusion of this contract. If both parties are entitled to demand the conclusion of the promised contract and each of them has set a different date, the parties are bound by the time limit set by the party that previously made the relevant declaration.
Preliminary contract - what can be included in it
In addition to the required information, the parties to the contract may also include certain additional terms or obligations of the employee. The preliminary contract does not have a specific form in the act, so it is allowed to be concluded in writing and orally. However, it is worth having such declarations in writing, for your own safety in the case of compensation proceedings.
In the event that the employer withdraws from signing an employment contract that was preceded by a preliminary contract, the employee has the right to claim compensation for the damage suffered in connection with the belief in future employment, or even seek the conclusion of a promised contract. However, in a situation where the employee withdraws from the conclusion of the employment contract, then the employer is only entitled to compensation for losses incurred with the conviction that the contract was concluded. The parties may differently define the scope of compensation in the preliminary contract, and claims under it shall expire one year from the date on which the preliminary contract was to be concluded.
It is also worth mentioning that the mere arrival of the date specified in the preliminary contract as the date of conclusion of the employment contract does not mean that the contract has been formally concluded at the same time. This is confirmed by the judgment of the Supreme Court of 5 July 2011, file ref. Act. I PK 2/11.