Publication date: February 24, 2023
We are now in Poland on the verge of crucial changes in the labour law. However, despite the supposedly revolutionary changes in the supervision and enforcement of employee duties, Polish labour law will not still, in its standard wording of the Polish Labour Code, indicate precisely the definition and scope of the general due diligence of the employee’s duties.
Therefore, it will be timely to create a contractual framework, because the employer should make an agreement with the employee in a written or confirmed letter at the latest on the day of starting work, indicating, among other aspects, what is precisely the duty of the employee.
Only in this way will it be possible to objectively determine in the future during the performance of work whether the employee is doing his best in his work.
Taking into account the legal regulations, the employee’s duties are to be performed by him, unless they are contrary to the law or the employment contract. Due to this, the employer, when creating the contract, including specifying the employee’s obligations, should pay particular attention to the regulations regarding the basic principles of labour law and mobbing, while protecting his own interest so as to minimize abuse and time mismanagement on the part of the employee.
In the case of an employee in a position that involves direct contact with the client, diligence and conscientiousness in performing work play a significant role. Such an employee represents the employer during personal contact with the client, hence the conditions of employee diligence should be specified in the employment contract as precisely as possible.
The duties of the employee in the employment contract are usually defined by enumerating them. In addition to expressly stating due diligence, in the case of customer service, phrases such as “making every effort to ensure the highest quality of the service provided”, “appropriate representation” and “worthy representation of the brand” emphasize and specify the expectations of the employer. In addition, the employer may stipulate in the contract that during employment, the employee will be obliged to devote all his working time, attention and abilities to the employer’s activities.
In order to protect its interests, the employer may attempt to define due diligence by developing and accurately describing the duties of the employee. For example, the clause “making every effort to ensure the highest quality of the service provided” should be expanded by specifying specific activities, i.e. “noticing and welcoming the customer”, “efficient service”, “eye contact”.
In addition to specifying the duties together with the way they are performed, the employer can protect his interest in less direct ways. For example, the obligation to report to the supervisor or manager, in addition to the information function, may additionally motivate the employee and give them a sense of control, which may translate into greater diligence in their actions.
The same is the case when the employer stipulates in the contract the obligation of the employee to inform the supervisor about the misconduct of the employee or another employed person. Awareness that the employer expects such information from the employee, but also from others, may contribute to greater commitment and prudence so as not to commit misconduct, which will result in increased diligence and conscientiousness in the performance of work.
Another way to protect the employer against failure to exercise due diligence by the employee may be the provisions of the contract on prohibited acts that the employee may not commit. For example, the ban on preparing during working hours to compete with the employer seemingly applies only to the prohibition of competition under the Labour Code. However, such a provision in the employment contract can also be interpreted as protection of the employer’s interest – the employee should perform his work conscientiously and carefully, instead of preparing for actions that may be harmful to the employer. A similar situation occurs in the case of a ban on accepting offers for personal performance or for the provision of such activity to another entity. This constitutes a violation of the non-competition clause and if the employer suffers damage as a result of such actions, he is entitled to claim compensation against the employee.
The labour law provides for the protection of the employer against competitive activities also after the termination of the employment relationship. This applies to situations where the employee and the employer have access to particularly important information, the disclosure of which could expose the employer to damage. The non-competition clause must be provided for in the contract, and its duration depends on the period, which must also be specified in the contract.
The employer, protecting his interest, may include a confidentiality clause in the contract. The employee’s obligation to keep the secret of the company may last throughout the period of employment, but also for a certain period of time after the termination of the employment relationship. The employer should indicate the scope of information that is subject to protection and the duration of the secrecy. In addition, the employer is protected by the Labour Code in terms of business secrets. One of the specified duties of the employee is to keep secret information, the disclosure of which could expose the employer to damage. However, the employer may additionally secure his interest through an appropriate provision in the contract or a separate contract.
Copyright can be a problematic issue in employment contract. As a rule, the copyright belongs to the creator, but in the employment relationship it is the employer who has an interest in having the ownership right transferred to him. However, the Polish legislator provides that the employer whose employee created the work as a result of the performance of duties under the employment relationship acquires copyrights upon acceptance of the work within the limits resulting from the purpose of the employment contract and the joint intention of the parties. Therefore, unless the employment contract provides otherwise, the transfer of copyright under the employment relationship takes place automatically under Polish law. However, especially in international employment relations, the employer, in order to secure the transfer of ownership rights, should properly reserve their transfer from the employee to him, for example by including in the employment contract a clause reading “all copyrights and other intellectual property rights, upon creation in the normal course of work, throughout the period of employment, are the subject of rights which are the sole property of the employer”.
It is up to the employer to determine the criteria for the general duty of diligence and diligent work of an employee. For this reason, the duty of conscientiousness and diligence of an employee is determined individually by employers, depending on the type of work and the conditions of its performance. The discretion of the employer is limited by legality and the provisions of the contract. However, the employer can protect his interest in the employment contract in many ways. It is worth remembering that the employment contract is not a contract of a certain result, therefore the employer, on the basis of the duty of due diligence, cannot demand that the employee achieves specific results. This is related to the risk borne by the employer in the case of employing an employee.