ÚOHS vyjasňuje pravidla pro no poach doložky na pracovním trhu

The Office for the Protection of Competition (ÚOHS) has issued new guidance on the permissibility of so-called ancillary restraints in labour markets, particularly in relation to no-poach agreements and non-solicitation clauses. In recent years, such arrangements have been subject to increased scrutiny by competition authorities and are generally considered problematic where they restrict labour mobility or competitive pressure between employers.

However, ÚOHS confirms that, under certain conditions, such restrictions may be permissible. The key requirement is that they constitute an ancillary element to an otherwise legitimate transaction—i.e. they must be directly related to it, necessary for its implementation, and proportionate to the intended objective, typically the protection of investments in recruitment.

In practice, an arrangement whereby, for example, an employment agency undertakes not to actively approach employees whom it has itself placed with a client may be acceptable. A crucial factor is the limited scope of such an obligation—both in terms of its extent and duration. The duration cannot be determined universally but must correspond to the period during which the restriction is genuinely necessary, for instance while the agency retains an informational advantage from the recruitment process. Conversely, arrangements lasting for the entire duration of employment or preventing an employee from actively changing employment are clearly considered impermissible by ÚOHS.

From a broader perspective, ÚOHS confirms that non-solicitation and no-poach commitments may, in certain cases, also be acceptable in the context of corporate transactions, provided they meet standard limits similar to non-compete clauses (in particular with respect to duration and scope) and serve to protect a legitimate economic interest. At the same time, it emphasizes that the boundary between permissible and prohibited arrangements remains narrow and always depends on the specific design of the clause.

ÚOHS concludes that no-poach agreements will generally continue to be assessed as prohibited agreements by their very nature. This applies irrespective of whether they concern highly skilled or unskilled employees. The fact that a particular agreement may have a limited impact on the market does not in itself render it permissible. Employers should therefore proceed with caution when structuring such provisions and always carefully assess their necessity and proportionality.

Authors:

Vladimír Petráček

Matěj Šimpach