10.09.2019

Legal News 8 – September 2019

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Legal alert – relevant amendments to the Polish Labour Code (7 September 2019)

Please be informed that on 7 September 2019, an amendment to numerous provisions of the Polish Labour Code (“LC”) entered into force. Analyzed changes concern many legal areas and have significant importance from the perspective of both – employers and employees. The majority out of introduced amendments is establishing additional conveniences for employees.

Below we present a brief description of introduced changes, together with an indication of their main practical effects and potential recommended actions to take in order to reduce legal risks.

Introduction of an open catalogue of circumstances justifying finding discrimination of an employee in the workplace

Main legal risks:

increasing legal risks on the basis of employee’s compensation claims (due to pay discrimination or discriminatory treatment in the personal sphere; potential additional compensation claims after termination of employment).
Possible amount of compensation: at least equivalent of minimum remuneration present in Poland at the time but an amount of an eventual compensation is no limited (no upper limit).

Risk reduction:

presence of precise provisions of work regulations concerning anti-discrimination policy, including a clear procedure for reporting discrimination in the workplace,
conducting training workshops for supervisors, executives, managers on preventing discrimination in the workplace.

Recommended legal actions:

verifying and improving work regulations in terms of present anti-discrimination provisions, including preventing pay discrimination,
training workshops regarding prevention of discrimination in the workplace, then placing confirmation of participation in such workshops in the employee’s personal files of supervisors, executives, managers.

According to previous wording of the relevant provisions of the Polish Labour Code (i.e. of art. 11³ and 18^3a § 1 of LC in wording present before 7 September 2019), discrimination within the meaning of the LC was defined as unjustified worse treatment of a particular employee due to his personal characteristics or circumstances related to work performed by him/her.

Art. 18^3a § 1 of LC contains an exemplary catalogue of circumstances justifying stating presence of discrimination in the workplace understood as unjustified diversifying the situation of employees due to – among others – age, gender, ethnicity or nationality.

Recent amendment to the Polish Labour Code introduced significant change in this respect, because from September 7, 2019, any unequal treatment of employees without objective reasons will be considered as discrimination.

Therefore, Polish legislator has clearly determined that any unequal treatment of any employee, which cannot be justified by objective reasons, should be considered as a discrimination within the meaning of Polish Labour Code. Analyzed change undoubtedly makes it easier for employees to claim for compensation based on anti-discrimination regulations.

It seems that as of amendment of September 7, 2019, the case law of the Polish Supreme Court (“SC”) will also partially lose its validity. Polish SC confirmed that until September 7 criterias for discrimination regarding employee’s personal characteristics were exemplary, meanwhile other criterias were listed in Polish Labour Code in a “closed manner” (closed catalogue).

In the past Polish courts have already referred to potential other (broader) discriminatory criterias, such as a discrimination based on citizenship, employee’s appearance or parenthood. From 7 September 2019, there is no doubt that any manifestation of unjustified differentiation of employees’ situation constitute a violation of relevant provisions of the Labour Code.

Such amendment has practical significance, especially bearing in mind that allegation of discrimination stated by employees concerning compensation claims can occur both – during employment (for example, through an allegation of pay-related discrimination) as well as – which is the most common in practice – after termination of employment.

Legislator did not introduce transitional provisions regarding the analyzed regulation, however, the dominant view is that anti-discrimination provisions in previous wording apply only to situations “completely closed” before September 7, 2019. If the allegation of discrimination relates to continuous conduct (i.e. discrimination occurs also after September 7, 2019), the new wording should apply.

Analyzed change is important mostly from the employers’ perspective. According to relevant provisions of Polish Labour Code, if the employee claims compensation on grounds of discrimination, “reverse burden of proving” applies, which means that the employer must prove that such possible claim of the employee is not justified. Therefore, it is highly recommended to secure this legal area and to take preventive actions indicated in the table above.

An employee may claim compensation based on mobbing not only after termination of employment contract but also during his/her employment

Main legal risks:

significant increasement in legal risks based on claims for compensation regarding mobbing in the workplace – from September 7 they may be raised not only after termination of employment, but also during employment (what was considered as a main limitation from employees’ perspective before September 7). What is important, Polish Labour Code does not state an upper limit on the amount of employees’ claims in this respect.

Risk reduction:

introduction of transparent and effective anti-mobbing policy (in the work regulations or in a separated “corporation code of ethics”),
conducting training workshops for supervisors, executives, managers on anti-mobbing activities. Polish Labour Code expressly imposes an obligation on the employer to actively prevent mobbing in the workplace.

Recommended legal actions:

introduction or revision of anti-mobbing policy (in the work regulations or in a separated document),
conducting training workshops regarding prevention of mobbing in the workplace.

Previous wording of art. 94³ of the LC stated that the employee could claim compensation from the employer based on experienced mobbing in the amount not lower than minimum remuneration for work present in Poland, but only if he/she terminated employment contract due to mobbing.

Legislator has made a significant change in this respect. According to the new wording of abovementioned regulation (i.e. effective from September 7), the employee may claim compensation basing on mobbing also in situation in which he/she has not terminated the employment contract. This amendment significantly extends the scope of application of art. 94³ of the LC. Moreover, what is important, Polish Labour Code does not state an upper limit on the amount of employees’ claims basing on mobbing.

Bearing in mind introduced changes, from the employers’ perspective it is important to remember that according to art. 94³§ 1 of LC The employer is obliged to prevent mobbing. One of the most common method of preventing mobbing in the workplace is introduction of transparent internal anti-mobbing regulations (policies), which should assume clear and objective internal procedures. It is also worth to consider introduction of anti-mobbing commission, which main task is to resolve disputes regarding mobbing at the pre-trial phase. Both of these solutions can significantly reduce legal risks and at the same time – encourage maintaining proper relations in the workplace.

Special (strengthened) protection of employment due to pre-retirement protection will also cover employees’ employed under fixed-term contracts

According to numerous commentaries expressed in the literature on the subject and in accordance with binding guidelines contained in the judgement of the Polish Constitutional Tribunal of December 11, 2018, reference number act: P 133/15, the legislator granted further rights to employees’ covered by pre-retirement protection within meaning of art. 39 of Polish Labour Code (i.e. to employees’ being 4 years before reaching retirement age), whose fixed-term employment contracts have been terminated contrary to labor law regulations.

Therefore, after September 7, 2019, employees’ covered by pre-retirement protection who are employed under fixed-term employment contracts (then, not only under employment contracts concluded for an indefinite period of time, as before the amendment), will be able to seek recognition of ineffectiveness of termination of their contract or reinstatement to work on previous conditions, assuming their special protection. Therefore, seeking such legal protection by the employees’ is way easier from their perspective after 7 September.

Amendments regarding issuing certificates of employment

Amendments in this area cover several issues and all of them provide further facilities for employees. Therefore, from 7 September 2019 the following changes have been made:

extension of the period from 7 days to 14 days, in which the employee may apply to the employer with a motion to rectify certificate of employment and – also within 14 days – to court with a request to rectify defective certificate of employment issued by the employer,
introduction of a new regulation stating that if the employer will not issue certificate of employment, the employee may request the labor court to oblige the employer to do so, under pain of a fine imposed on the employer,
new regulation that entitles the employee to apply to the labor court with a request to determine the right to receive certificate of employment in a situation in which the employer no longer exist (for example due to bankruptcy) or it would be impossible to bring such legal action against the employer due to any other reasons,
the employer’s liability in the event of not issuing certificate of employment to the employee was also strengthened – it was clarified that a fine of PLN 1000 to PLN 30000 may be imposed by court not only if the employer does not issue certificate of employment at all, but also if the employer fails to do so on time.

Strengthening the legal protection of „employee’s – other member of close family” who is entitled to use maternity leave or parental leave

According to the definition, by an “employee – other member of close family” should be considered other member of close family within the meaning of the Act of 25 June 1999 on benefits from social insurance in the event of sickness and maternity.

Aforementioned act does not contain an unambiguous definition of such employee, but it is assumed that ancillary application in this regard applies to art. 32 section 2 of the act, which contains a definition of a family member for the purpose of obtaining the right to care allowance. Mentioned provision specifies that in addition to a spouse, such status should be also given to parents, in-laws, grandparents or siblings, however, according to the Polish Labour Code, entitlements to maternity leave or parental leave are not dependent on staying in a shared household.

The Ministry of Family, Labor and Social Policy explained in its position, that close family member should therefore be understood as a person who remains with the child’s mother in relationship of affinity or marriage.

The legislator has significantly extended the legal protection of employees – other family members who take maternity or parental leave:

from 7 September they are covered by special protection of employment contract’s durability (strengthened protection against termination of employment) and they are granted with analogous further rights in this regard,
in the event of reinstatement of such employee to work due to faulty termination of his/her employment contract, he/she is entitled to remuneration for the entire period of unemployment, which is a consequence of granting these employees special protection of employment’s contract durability.

Author: Jakub Pietrusiak