What is a loyalty clause to the employer?
The clause regarding the employee’s obligation to maintain confidentiality as to information obtained in connection with employment is in colloquial language the so-called “lojalka.”
It results from art. 100 § 2 point 4 of the Labor Code, according to which “an employee is obliged in particular to care for the good of the workplace, protect his property and keep secret information whose disclosure could expose the employer to damage”.
In the judgment of 11 September 2014 (reference number II PK 49/14), the Supreme Court stated that the creation by the employee on a private electronic medium of a collection of confidential information illustrating the current and planned commercial contacts of his employer (having a measurable economic value), which is not justified by the performance of employee obligations, is a deliberate violation of the employee’s basic duty to care for the good of the workplace and protection of his property (article 100 § 2 point 4 of the Labor Code) and the use of someone else’s information constituting a trade secret (article 11 (1) of the Act on combating unfair competition).
Such disloyal behavior may justify termination of the contract without notice. When analyzing employee behavior, emphasis should be placed not so much on the culpable (non-guilty) or legal (unlawful) nature of his behavior, but rather on his loyalty to the employer.
Therefore, even if a non-disclosure agreement or non-competition agreement has not been concluded with the employee, certain employee activities for the benefit of competitors or undertaking their own activities competing with the activities carried out by the employer may be assessed as a breach of the duty to care for the good of the workplace.
It is worth remembering that every employee infringement must be proved, because the Labor Court decides only on the basis of evidence submitted by the parties during the trial. Moreover, even dismissal of an employee does not justify the reduction of remuneration, in particular for overtime or night hours.
KSJ Legal Law Firm successfully conducts labor law cases, including those regarding unjustified or fictitious termination of the employment contract. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Attorney-at-law Joanna Susło
KJS Legal Kancelaria Adwokacka – Law firm in Wrocław
Advocate – Wrocław – Labour law