Employment 2021

Last Updated September 07, 2021

Poland

Law and Practice

Authors



Hogan Lovells (Warszawa) LLP (Spółka partnerska) is one of the top law firms in Poland, offering a broad range of services and tax and legal expertise. The Warsaw office has more than 20 years' experience in advising clients. The Employment team works for clients operating in all sectors of the economy, both in Poland and abroad, and offers them legal advice in all aspects of employment law. The advice covers the following areas: employment aspects of mergers and acquisitions as well as cross-border mergers, including the transfer of employment establishments to new employers, and employee participation rights; restructuring of employment, including group redundancies; issues related to unionised and non-unionised employees; representing employers in negotiations with trade unions, collective disputes and disputes with employees, both inside and outside the courts, and in the case of court disputes, the firm represents clients before courts of all instances, including the Supreme Court; cross-border employment and the employment of citizens of EU and non-EU member states in Poland, including work and residency permits; and compliance, mobbing and discrimination-related issues.

Save for a number of COVID-19-related measures that were purely of a temporary nature, there have also been several other significant amendments in Polish employment law enacted within the past 12 months.

New Minimum Wage (2021)

The minimum monthly remuneration for an employee working under an employment contract in 2021 has been increased to PLN2,800 gross. In the case of civil law contracts such as service contracts, the minimum wage has also been increased to PLN18.30 gross per hour.

Registration of Contracts for Specific Work

Starting from 1 January 2021, the employer (ie, the social security contribution payer) is obliged to inform the Social Insurance Institution about the conclusion of any contract for a specific task (umowa o dzieło) if such contract has been concluded with a person who is not its employee. The submission should be made within seven days from the date of the conclusion of said contract. The submission should be made by filling in the ZUS RUD form. The obligation does not apply to contracts concluded before 1 January 2021.

This change could mean that the government might use the register of specific task contracts to carry out inspections in companies abusing contracts for specific work. It is worth mentioning that under the applicable regulations, contracts for specific work are permitted, but they are a more beneficial form of co-operation in terms of social security obligations than employment contracts or mandate contracts (since they are exempt from social security contributions).

Further Development of Employee Capital Plans (Pracownicze Plany Kapitałowe, or PPK)

On 1 January 2021, the fourth and final phase for implementing PPK began, which imposes the obligation to establish PPK by those employers so far not covered by said obligation; ie, employing fewer than 20 people.

PPK is a mandatory additional long-term saving programme (co-funded by the employer, employees and partially by the state). The employer's compulsory contribution rate is 1.5% of the employee’s remuneration (minimum level). The enrolment into the pension plan is automatic for all employees of applicable age; however, employees have the right to opt out from it at any time. Failure to set up PPK can result in fines imposed on the management board of the company amounting to up to 1.5% of the employer’s remuneration fund from the previous year.

Implementation of Directive 2018/957 of the European Parliament and the Council of 28 June 2018 Amending Directive 96/71/EC Concerning the Posting of Workers in the Framework of the Provision of Services

Since September 2020, new obligations have been imposed on employers that post workers to Poland.

The new regulations require that all persons posted to Poland are guaranteed remuneration (understood as all its components) at a level not lower than that guaranteed to Polish workers. Employees posted to Poland for more than 12 (exceptionally 18) months must also be provided with the other terms and conditions of employment applicable in Poland, with the exception of those concerning the termination of employment contracts, non-competition agreements, or pension schemes.

Poland has taken a number of temporary measures to help mitigate the financial and organisational challenges that employers face due to the COVID-19 outbreak, and to help them deal with the temporary decrease/lack of workload.

Remote Working

During the COVID-19 pandemic period, as well as for three months after its official revocation, employers in Poland are entitled to instruct their employees to work remotely in order to prevent the spread of the coronavirus. Employees cannot generally object to these instructions. Such COVID-19-related remote work, unlike remote work unrelated to COVID-19, does not require the employee’s consent.

The implementation of COVID-19-related remote work is left to the employer’s discretion and depends on its assessment of the COVID-19-related risk in the workplace; however, the government recommends that employers should encourage employees to work remotely whenever possible to limit exposure to COVID-19.

Temporary Reduction of Salaries

During the COVID-19 pandemic, employers that incurred an economic downturn due to COVID-19 can put some or all of their employees on economic stoppage (meaning that the employees are released from their obligation to work during this period), or shorten their working time by a maximum of 20%. The above changes can lead to a respective reduction of the salaries of the employees concerned.

The aforementioned measures must be introduced upon the agreement with the relevant employees' representatives or trade unions, but the consent of each individual affected employee is not required.

The State’s Co-financing of Salaries

Employers hit by an economic downturn could apply for the co-financing of their employees' salaries (including the related social security contributions) in a maximum amount of approximately EUR300 per employee (in the case of the implementation of an economic stoppage) or approximately EUR450 per employee (in other cases). This aid was granted for a maximum period of three months. Co-financing did not apply in the case of certain groups of employees (maximum salary threshold).

The above-mentioned co-financing of salaries was only valid until 30 June 2021, and so far there is no official information indicating that it will be extended in the upcoming months.

Limitation of the Amount of Severance Pay

The amount of severance pay that is due to an employee because of the termination of their employment contract, if the regulations stipulate the obligation to pay such payment, cannot exceed ten (instead of the statutory 15) times the minimum wage for Poland.

In principle, Polish employment law does not stipulate a differentiation between blue-collar and white-collar workers. However, there are certain special provisions in the Labour Code that apply to executives relating to overtime, maximum weekly working time and minimum rest periods; in particular:

  • employees who manage an employment establishment on behalf of their employer (ie, members of the management board) and heads of separate organisational sub-units of the organisation will, in so far as is necessary, perform work beyond normal working hours without the right to any additional remuneration for overtime;
  • employees who are heads of organisational sub-units have the right to additional remuneration for overtime work performed on Sundays and public holidays if they have not been given another rest day in return;
  • there is no obligation to keep the working time evidence for those employees who manage the employment establishment on behalf of their employer;
  • the limitation on the number of possible working hours per week (ie, a maximum of 48 hours together with overtime hours) does not apply to employees managing the workplace on behalf of their employer; and
  • the requirement to ensure at least 35 hours of uninterrupted rest every week, including at least 11 hours of uninterrupted daily rest, does not apply to employees managing the workplace on behalf of their employer.

Employment contracts should be concluded in writing; however, the lack of a written form will not make the contract invalid. If the agreement is not concluded in writing, the employer is obliged to at least provide the employee with a written confirmation of the employee's employment conditions prior to the commencement of their work. The failure to complete the above requirement triggers the employer's liability for committing an offence against the employee's rights, but does not cause the invalidity of the employment relationship. The written form requirement will also have been met if the document is signed electronically using a qualified electronic signature.

In Poland, employment agreements can be concluded for:

  • a probationary period (no longer than three months);
  • a fixed term; or
  • an indefinite period.

As a general rule, only three consecutive fixed-term contracts are permitted, and the period of employment under fixed-term contracts between the same parties cannot exceed 33 months. It is common practice to employ regular (non-senior-level) employees under an employment agreement for a probationary period (or fixed term) first and to conclude an agreement for an indefinite term afterwards. An employee in a senior-level position typically receives a permanent agreement for an indefinite period from the beginning of their employment.

The employment agreements must be in writing and in the Polish language unless the employee, if they are not a Polish citizen, requests that the execution of the employment agreement be in a different language.

The parties to the employment agreement are free to choose the law of another country to govern the employment relationship. However, if the work is to be performed in Poland, certain employee entitlements as imposed under Polish law would need to be recognised by an employer anyway.

Generally, the working time limit amounts to eight hours a day with an average of 40 hours a week, within an average five-day working week (the basic reference period amounts to four months) subject to extraordinary working time systems that include certain extensions. The limit, including overtime work, amounts to an average of 48 hours a week within the adopted reference period.

There are also provisions that guarantee the minimum daily and weekly rest periods (a minimum of 11 hours per day and 35 hours once a week) and the prohibition of work on Sundays/public holidays (subject to certain exceptions). These limits can be modified based on the system and work time schedule adopted.

Overtime work is, in principle, permitted for the employer's justified needs or a rescue action. Overtime should not exceed 150 hours annually, but the employer can modify this to up to 416 hours.

For overtime work, employees are entitled to their regular remuneration plus 50% or 100% additional compensation. Instead of overtime compensation, the employer can grant the employee time off. In the situation concerning employees who regularly work outside the office and whose working time cannot be subject to an employer’s control, it is possible to stipulate a lump-sum overtime compensation corresponding to the estimated amount of overtime work.

The parties are free to agree the amount of remuneration. However, the remuneration cannot be lower than the officially announced minimum wage. This minimum wage for employees is established and adjusted every year by the government. As of 2021, it amounts to PLN2,800 a month for full-time employment.

The payment of a variable salary is not regulated in the statutes but is rather a matter of negotiations between the parties to the employment agreement.

Holiday Leave

An employee is entitled to:

  • 20 days of holiday leave per year – if they have been employed for less than ten years, in general; or
  • 26 days of holiday leave per year – if they have been employed for more than ten years, in general.

Periods of previous employment, even with a different entity, are included in the work record on which the length of the holiday leave depends. In addition, education periods are included in the work record on which the length of the holiday leave depends. During a holiday leave, the employee is entitled to regular pay as if they were working. An employee cannot give up their right to holiday leave. Cash payment in lieu for unused holiday is possible but only in the case of a termination or the expiry of employment.

Sickness Leave

Generally, employees on sick leave are entitled to sick pay in the amount specified by law, which is equal to 80% (or 100% in the case of pregnant employees, or sickness caused by an occupational accident) of their remuneration calculated in general on the basis of the salary received for the 12 consecutive months preceding the period of their incapacity to work.

In general, for the first 33 days of sick leave, the above-mentioned sick pay is paid by the employer, and afterwards the payment obligation is taken over by the state (ie, the Social Security Office). The absence from work due to sickness requires providing the employer with a sickness certificate issued by a doctor (either in paper or electronic form; the so-called e-ZLA).

Family-Friendly Rights

Parent employees are entitled to statutory leaves, including:

  • basic maternity leave – from 20 to 37 weeks (depending on the number of children born) (allowance equal to 100% of earnings);
  • parental leave – from 32 to 34 weeks (depending on the number of children born) (the first six to eight weeks’ allowance of 100% of earnings, and then 60%);
  • paternity leave – two weeks (allowance equal to 100% of earnings); and
  • additional parental leave – maximum of 36 months (unpaid).

The payments during the above-mentioned leaves are paid by the state (ie, the Social Security Office) and are calculated in the same manner as sick pay; ie, based, in general, on the salary received for the 12 consecutive months preceding the period of incapacity to work.

Confidentiality

The employee's basic duties, as stipulated in the Labour Code, include taking care of the interests of the employer, protecting its property, and maintaining the confidentiality of information, the disclosure of which could expose the employer to damage, as well as observing the confidentiality obligations stipulated in the Act on Combating Unfair Competition. However, there are no direct statutory regulations concerning the post-employment period. Therefore, it is highly advisable to sign confidentiality agreements that would obligate the employee to keep their employer’s confidential information secret both during and after the termination of employment.

Liability Rules

The rules for employee liability for damage caused to their employer depend on whether the employee caused the damage intentionally or accidentally. If the damage sustained by the employer is caused by the employee accidentally as a result of the non-performance or undue performance of work duties, the employee’s liability is limited to the extent of the actual loss incurred by the employer. Moreover, the amount of damages cannot be more than three months’ salary. If the employee causes damage intentionally, they will be liable for the full amount of the damage.

If an employee causes damage to a third party in the performance of their employment duties, only the employer (not employee) is obliged to compensate for the damage.

Post-employment restrictive covenants can only apply to an employee who has access to particularly important information, the disclosure of which could expose the employer to damage. These clauses must be agreed in writing to be valid and must determine the time, place and scope of the non-compete undertaking. There is no statutory limit concerning the duration of a non-compete restriction, but typical post-termination bans last for three to 12 months. A non-compete will not be effective if it takes the form of an absolute ban on any activity in a particular industry; it must relate to an activity actually carried out by the entrepreneur (main or secondary) or planned (not a hypothetical possibility). Moreover, post-employment non-competition clauses must stipulate the amount of compensation payable to the employee for their compliance with the non-competition restriction. This compensation cannot be lower than 25% of the remuneration received by the employee prior to their termination of employment for the period equal to the period of the prohibition of competition. Compensation can be paid in monthly instalments.

If the employee violates a valid and enforceable non-compete clause, they become liable to pay damages to the employer. In practice, post-employment non-compete covenants are commonly combined with a contractual penalty that must be reasonable in relation to the employee’s compensation for the non-compete restriction. Furthermore, the employer can also be entitled to further damages if the damage caused by the employee exceeds the amount of the contractual penalty.

Non-solicitation clauses with reference to clients and customers are allowed under Polish law. These non-solicitation clauses typically cover the term of employment and/or a defined period after their termination (usually one to three years). Unlike post-employment non-competition covenants, Polish law does not require the employer to pay the employee any compensation for non-solicitation in order to be considered enforceable. Non-solicitation clauses concerning customers in certain circumstances can actually be considered to be non-competition clauses that require compensation.

In general, the processing of personal data in the employment sphere is subject to the provisions of the Labour Code, which was amended after the entry into force of the General Data Protection Regulation (GDPR). Employers should also keep in mind other regulations contained in various legal acts, which stipulate, for example, the storage limitation periods of certain documents containing employees’ personal data.

GDPR

The GDPR sets forth the general rules that should be followed by employers that act as data controllers of their employees’ personal data. According to these rules, employers should, among other things:

  • have a legal basis for data processing, and ensure that this processing is conducted in a fair and transparent manner in relation to the employees;
  • collect, use and process their employees’ personal data for specified, explicit and legitimate purposes, and should not further process such data in a manner that is incompatible with these purposes;
  • collect, use and process adequate and relevant personal data, which should be limited to what is necessary in relation to the purposes for which it is processed;
  • keep accurate and up-to-date personal data of their employees;
  • keep personal data of their employees for no longer than is necessary for the purposes for which the personal data is processed; and
  • process personal data in a manner that ensures the appropriate security of the personal data, including protection against any unauthorised or unlawful processing, and against any accidental loss, destruction or damage by using the appropriate technical or organisational measures.

The Labour Code

The Labour Code sets forth certain restrictions with respect to the processing of employees’ personal data. In particular, employers are allowed to:

  • request from their employees only certain limited personal data that is expressly listed in the Labour Code, and other personal data but only to the extent if it is necessary in order to exercise rights or to fulfil an obligation arising from the provisions of law;
  • process employees’ personal data that does not constitute so-called special category data (ie, among other things, health data, political opinions, religious or philosophical beliefs, or data revealing racial or ethnic origin) on the basis of the employees’ consent, but only when the lack of this consent or the withdrawal thereof does not cause disadvantageous treatment or negative consequences for the employees; in particular, it cannot constitute a reason justifying the refusal of employment, the termination of an employment contract with notice, or its termination without notice by an employer;
  • process employees’ personal data that falls within special category data, on the basis of consent, but only if this personal data has been provided upon an employee’s initiative;
  • process an employee’s biometric data, as well as in a situation where it is necessary to provide this data for the control of access to particularly important information, the disclosure of which could expose the employer to damage, or for access to premises requiring special protection; and
  • use monitoring that involves the processing of employees’ personal data only for certain purposes indicated in the Labour Code and only to a certain extent.

In general, there are no special requirements needed to perform work in Poland applicable to an EU/EEA/Swiss citizen.

In order for all other foreigners to be allowed to legally work in Poland, the below-mentioned conditions need to be fulfilled:

  • they must hold a document permitting them to enter the Polish labour market; and
  • they must hold a residence document that also indicates their right to work (eg, the relevant visa or residence permit; however, a tourist visa would be considered insufficient).

There are several types of documents that allow for entry into the Polish labour market:

  • a work permit (types A, B, C, D, or E) – applied for by the employer to the competent voivode; these types of work permits generally authorise work for up to three years;
  • a seasonal work permit (type S) – applied for by the employer to the competent starost (the Poviat Labour Office); this type of work permit authorises seasonal work (in agriculture, horticulture, the tourist industry), for up to nine months within a calendar year;
  • a declaration on entrusting work to a foreigner – submitted by the employer to the Poviat Labour Office for nationals from Armenia, Belarus, Georgia, Moldova, Russia and Ukraine; this type of work permit authorises non-seasonal work without a permit for six months over 12 consecutive months; and
  • a temporary residence and work permit – applied for to the voivode by a foreigner who is staying in Poland legally; this type of work permit authorises the applicant to work and reside in Poland.

Please refer to 5.1 Limitations on the Use of Foreign Workers.

The right to establish and join a trade union is granted to employees, as well as civil law contractors. Establishing a trade union requires, among other things, the adoption of resolutions concerning the establishing of the trade union by at least ten people, the election of trade union authorities, the drawing up of the articles of association, and the union’s registration in the court register.

The trade union is obliged to notify the employer about the number of its members in the given entity twice a year (by January 10th and July 10th). There is no obligation to disclose the names of its members.

Trade unions, if present in a company, retain significant influence over the operations of the company; in particular, the employers are obliged:

  • to agree with the trade union on the Remuneration, and Social Benefit Fund By-laws (whenever they need to be adopted);
  • to consult with the trade unions about any anticipated termination of the employment agreements with employees who are members of said trade union, or are covered by the protection of the trade union as a non-member;
  • to consult/notify the trade unions in the case of an anticipated transfer of the work establishment;
  • to consult/notify the trade unions in the case of any group lay-offs – with no right to block the dismissals.

Moreover, the trade unions can, under certain conditions, take strike action.

The creation of works councils is not obligatory in Poland; however, employers employing at least 50 employees are required to notify their employees that they are entitled to set up a works council. Works councils have consultation and information rights in matters concerning, among other things, changes in the employer’s economic situation, or any substantial changes in the work organisation and/or headcount.

Collective bargaining agreements (CBAs) can be concluded between the employer and the trade union (a single-establishment CBA), or between the employers' organisations and the intercompany trade unions (multi-establishment CBAs). The purpose of concluding a CBA is to agree on the comprehensive work conditions and terms of the employment relationship (eg, remuneration, additional benefits for employees, employment guarantees) and the mutual obligations of the parties. The terms of any collective bargaining agreements cannot be less favourable than the provisions of the Labour Code. A collective labour agreement directly affects the rights of employees covered by its provisions.

A CBA can be concluded for a definite or indefinite period. A CBA requires registration with the relevant register maintained by the competent state authority (the local labour inspector, or the Ministry of Labour). The registration of a CBA is preceded by an examination of the legality of its provisions.

An employment contract can be terminated:

  • by mutual consent of the employee and employer (ie, via a mutual termination agreement);
  • upon written notice by one of the parties observing the period of notice (a so-called termination with notice);
  • upon written notice by one of the parties without observing the period of notice (a so-called termination without notice); or
  • after the expiry of the period for which it has been concluded.

An employer’s statement on the termination of an employment contract concluded for an indefinite period of time upon notice, as well as a statement on the termination of an employment contract without notice, should be in writing (ie, it requires a handwritten signature or a qualified electronic signature) and should stipulate the reasons for the termination. Furthermore, the employer’s statement concerning the termination should include information on the employee’s right to appeal to a labour court.

The reason for the termination must be valid, justifiable and real, but there is no legal definition or catalogue of the reasons justifying the termination of a contract. The above means that dismissals can be justified for employee-related reasons (such as poor performance) or for employer-related reasons (eg, liquidation, internal reorganisation). The reason for the termination must be sufficiently clear that the employee can easily comprehend it. The lack of any justified reason for termination is one of the grounds for an appeal against dismissal.

If an employee is protected by a trade union, the employer must inform the trade union of its intention to terminate the contract for an indefinite period.

In general, Polish law does not distinguish in the procedure between performance-related dismissals and dismissals for economic and/or technical reasons. However, the procedures differ in the case of a collective dismissal.

Collective Dismissals

Collective dismissals take place if the employer employs at least 20 employees and within a period of 30 days redundancies are made upon the employer’s initiative and are motivated by reasons not related to the employees (eg, a reduction in the workforce due to the employer’s financial situation) and concern at least:

  • ten employees, if the employer employs less than 100 employees;
  • 10% of the employees, if the employer employs at least 100 employees, but less than 300 employees; or
  • 30 employees, if the employer employs more than 300 employees.

The procedure for collective dismissals requires prior consultations with the trade unions (if there are any) or the employee representatives. No letters of dismissal can be handed out until after the consultation period has concluded. Moreover, the employer is required to notify the local labour office as to the outcome of any consultations with the employee representatives, as well as any planned redundancies.

Employees who are made redundant under a collective dismissals procedure are entitled to a severance payment, the amount of which varies between one and three months’ remuneration, depending on the employee’s total length of service with the employer. The severance pay is capped at the level of 15 times the statutory minimum salary in Poland. Severance pay is also due to those employees who have been dismissed for non-employee-related reasons, even if the number of dismissed employees does not fall under the thresholds stipulated for collective dismissals, provided the employer employs at least 20 employees.

The period of notice depends on the type of employment contract and the length of service with the given employer. Notice periods can only be extended for the benefit of the employee.

The statutory notice periods are as follows.

For indefinite-term and fixed-term employment contracts, if the employee has been employed:

  • for less than six months – the notice period is two weeks;
  • for six months, but less than three years – the notice period is one month; or
  • for at least three years – three months.

For probation contracts:

  • if the contract is for a period up to two weeks the notice period is three days;
  • if the contract is for a period between two weeks and three months – the notice period is one week; or
  • if the contract is for a period of three months – the notice period is two weeks.

During the notice period, the employer can place the employee on gardening leave, retaining their right to remuneration during this time.

It is generally not possible to pay an employee compensation in lieu of notice. Only in cases of dismissals for non-employee-related reasons can the three-month notice period be shortened to one month against compensation.

During the notice period, the employee can be requested to use up their entire holiday leave or be paid an equivalent for any unused vacation.

An immediate termination due to an employee’s fault (summary dismissal) can take place only if the employee:

  • has seriously and intentionally – or by an act of gross negligence – violated their basic duties (a fundamental breach of the employee’s basic duties);
  • has committed an offence that makes the employee’s further employment in their position impossible, and providing this is obvious or confirmed by a final court verdict; or
  • is responsible for losing a licence or a qualification necessary to perform their duties in the position held.

Such termination is possible only within one month after learning about the circumstances justifying the immediate termination.

Under Polish law, an immediate termination by the employer is also possible in the case of a long-lasting incapacity to work due to illness (lasting longer than the joint period of receiving sick pay from the employer, statutory sickness benefit and rehabilitation benefit for the first three months).

Termination agreements are possible and are often the recommended way of terminating an employment relationship. In a termination agreement, the parties are free to determine the date of expiry of employment (ie, the notice periods do not apply), as well as agree on any other issues. The only restriction is that any waiver of the employee’s right to remuneration stipulated in such an agreement would not be valid. Termination agreements theoretically do not require a written form; however, from a practical point of view, it is recommended that they are executed in writing.

Under Polish law, certain employees enjoy special protection against dismissal, which means that their contracts of employment cannot be terminated upon notice. If notice is served, it will be effective; however, the employee would be able to challenge this in court.

The protection against dismissal specifically applies to:

  • employees absent from work due to holiday leave, maternity leave or parental leave;
  • pregnant employees;
  • the employee is at pre-retirement age (ie, four years before reaching retirement age); and
  • trade union officers or members of works councils.

The termination of a contract with trade union officers or members of works councils requires the permission of the management board of the relevant trade union organisation or works council. They are protected from dismissal not only during the term of their office, but also for one year after.

An employee can challenge their dismissal in a labour court if there was no justified reason for this dismissal or if the dismissal is otherwise faulty and breaches the law. Such an appeal can generally be submitted within 21 days of the date of receipt of the termination letter.

Employees dismissed with notice who have been employed for an indefinite period can demand that the court reinstate them to work, or can claim damages, whereas an employee hired under a definite-term contract can only claim damages. Employees dismissed without notice can claim for reinstatement to work, or for the payment of damages.

The value of damages for wrongful dismissal is limited by law; for instance, in the case of indefinite-term contracts, it can be generally awarded up to the amount of three months’ remuneration, but, and in the case of extended notice periods, the court can order damages corresponding to this extended notice period.

In the event of reinstatement to work, an employee would also be entitled to compensation for the loss of their remuneration during the term of being unemployed, but for not more than three months. This limitation of the amount of the compensation does not apply to certain categories of protected employees (eg, pregnant women, employees at pre-retirement age, or women on maternity leave) who are eligible to the aforementioned compensation for the entire period of their unemployment.

The courts are free to decide whether an employee will be reinstated to work or awarded damages depending on their assessment of the circumstances of a given case. In the situation of long-lasting proceedings, the courts often decide that a reinstatement to work is no longer possible.

Grounds for Anti-discrimination Claims

Under Polish law, employees have equal rights for performing the same duties and should be treated equally in terms of:

  • the establishment of employment relationships;
  • the determination of the conditions of employment;
  • promotion and access to training courses aimed at improving professional qualifications; and
  • the termination of employment relationships.

The list of grounds on which employers cannot differentiate between workers is open-ended and includes gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, sexual orientation, employment for a definite or indefinite period, or employment on a full-time or part-time basis.

Burden of Proof

The employee should indicate in the court on what grounds they have been discriminated against and indicate the circumstances demonstrating that they have been treated unequally on those grounds. It is sufficient that the employee substantiates their allegations that direct or indirect discrimination has occurred; whereas the burden of proving that the discrimination did not take place will rest with the employer, who will be obliged to prove that the differentiation between the employees has been motivated by objective reasons.

Claims

An employee who has faced any form of discrimination, harassment or sexual harassment is entitled to claim compensation from the employer, which cannot be lower than the minimum remuneration in Poland.

An employee can claim compensation for any damage suffered as a result of a breach of the principle of equal treatment, including the right to claim compensation for the difference in remuneration if it was too low as a result of the employer's discriminatory practices.

In addition, an employee has the possibility to terminate the employment contract with immediate effect due to a serious breach by the employer of its fundamental duties towards the employee. In this case, the employee will be entitled to compensation equal to the amount of remuneration corresponding to the notice period.

Labour disputes are typically resolved by the labour courts, which function within the Polish system of common courts. However, it is also possible to settle a dispute amicably by a mediator – for such a settlement to be binding, it will need to be approved by the court.

The professional legal representation of a party in a court is not mandatory in connection to labour law-related litigation. The parties are free to choose whether they represent themselves or ask for representation before the court from a licensed lawyer.

In labour matters, the parties can only enter into an arbitration agreement after the dispute arises. Unlike other types of relations, in labour matters it is not possible to agree in the employment contract that disputes arising between the employer and employee will be settled by an arbitration court. Such a provision would be invalid.

The procedural costs (court fees and costs for professional representation) are allocated in proportion to the outcome of the case. However, the costs for professional representation awarded by the court to the prevailing party typically do not correspond to the actual costs incurred but are determined based on statutory tariffs for employment matters. Any difference must be borne by the client.

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Hogan Lovells (Warszawa) LLP (Spółka partnerska) is one of the top law firms in Poland, offering a broad range of services and tax and legal expertise. The Warsaw office has more than 20 years' experience in advising clients. The Employment team works for clients operating in all sectors of the economy, both in Poland and abroad, and offers them legal advice in all aspects of employment law. The advice covers the following areas: employment aspects of mergers and acquisitions as well as cross-border mergers, including the transfer of employment establishments to new employers, and employee participation rights; restructuring of employment, including group redundancies; issues related to unionised and non-unionised employees; representing employers in negotiations with trade unions, collective disputes and disputes with employees, both inside and outside the courts, and in the case of court disputes, the firm represents clients before courts of all instances, including the Supreme Court; cross-border employment and the employment of citizens of EU and non-EU member states in Poland, including work and residency permits; and compliance, mobbing and discrimination-related issues.

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Since March 2020, the Polish labour market has been dominated by the COVID-19 pandemic. Employers face various challenges that concern remote or hybrid work, or returning to work, or problems with overdue holidays. A number of practical solutions have emerged that are ahead of the legal regulations. This difficult time has shown that employment law in Poland requires more flexibility to keep up with business requirements.

Remote Work Challenge

The necessity for change specifically concerns the issue of remote work that was introduced as teleworking into the Polish Labour Code in 2007 but turned out to be too complicated and too formal for the coronavirus era. The teleworking rules did not foresee the use of hybrid work from both the office and home as a result of the current circumstances, but required all out-of-office work to be performed on a regular basis. Secondly, the 2007 provisions require that an employer issues internal by-laws concerning teleworking after having consulted with the employees’ representative. These formalities require time and preparation, and do not fit in with the challenges brought about by COVID-19 and the rapidly changing situation in the labour market.

At the beginning of the pandemic, the Polish Parliament tried to react quickly to the oncoming crisis and by March 2020 adopted the so-called Covid-19 Act. One of the solutions introduced by the COVID-19 Act concerned remote work. Under this temporary COVID-19 provision, an employer in Poland received the right to instruct its employees to work from home. Unlike in other jurisdictions, the employing entity does not have to obtain its employees’ consent. The employer is obliged to provide the staff members with the necessary tools and materials for performing the work remotely. The firm’s decision, in this respect, is binding, and the employee cannot object. According to the COVID-19 Act, the temporary remote work rule will apply during the pandemic, and for three months after it ends.

Although this makeshift solution has proved to be effective during the first year of the pandemic, it is clear that the Polish market desires more comprehensive rules.

In order to respond to the needs of business, the Polish government continues to work on a number of new acts aimed at supporting the recovery of the economy, including various new regulations dealing with remote work.

From the very beginning, the regulations that are being prepared have created much controversy among employers, trade unions and employees. These regulations are moving forward very slowly and it is difficult to predict what form they will take and when they will be completed. The authors expect that under the new law, remote work will require an agreement between the employer and the trade unions. If no trade unions operate in the firm, the employer will have to consult the remote work by-laws with the employees’ representative.

Employees will, most likely, be able to work remotely full time or part time from home or from any other place agreed with the employer. Companies will have to provide their employees with all the necessary work tools and equipment. According to the first-draft legislation, it will also be possible that employees can make use of their own equipment; however, in this situation, the employer will have to pay them a cash equivalent previously agreed upon in the agreement with trade unions or the employees’ representative. The employer will have to reimburse their employees for the costs of electricity and their internet connection.

One interesting rule announced by the government is the so-called remote work on demand, which means that employees who, as a rule, work from their employer’s office will have the right to occasionally work from home a certain number of days per year, after reporting this request to their employer.

It is to be expected that under the new law, an employer will not be able to terminate an employment agreement purely because an employee does not agree to work remotely; and, at the same time, there will be an explicit ban on discriminating against remote employees.

The proposed legislation gives an employer room to define the rules of remote working in its workplace, but requires that these rules be consulted with the trade unions or the employees’ representative. The union side does not want to agree to giving the employer the power to set the remote working regulations itself in case it is not possible to reach an agreement with the unions or the employees’ representative. Unions believe that such a solution is not a way out of a potential stalemate, but it will, in fact, result in the actual loss of influence of the unions and the employees' representatives on shaping the principles of remote working in a given workplace. They argue that this arrangement will be no different than the employer’s power, temporarily introduced for the COVID-19 pandemic, to instruct its employees to work remotely at any time, without first having asked for their consent.

It is difficult to say in which direction the work on the draft legislation will go, but one thing is certain: the changes related to the flexibility of the labour market caused by COVID-19 cannot be stopped, and the remote work regulations will remain a hot topic for the next few months, or even years.

Return to Office Challenge

Not only remote work, but also returning to the office has become a real challenge for employers in Poland. Overall, the productivity of Polish personnel does not appear to have declined during the pandemic. Many employees are satisfied with their work carried out in their home office and appreciate the time saved resulting from not having to commute to work. However, there are also employees who feel that they have failed to maintain their work-life balance during the COVID-19 pandemic, and are unable to focus on their task or, on the contrary, are unable to use the right to disconnect from the company’s systems. These employees need personal contact and team motivation in order to work efficiently.

Therefore, the post-COVID-19 challenge for employers will be to rearrange work so as to meet the expectations of the staff and ensure an efficient workflow, communication and high productivity.

It seems that it will not be possible to return to the situation from before the outbreak of the coronavirus – certain changes cannot be undone and some employees will not return to work in the office after the pandemic ends.

As previously mentioned, it is worth remembering that in Poland, ordering remote work during the pandemic is not the employee’s right, but on the contrary, the employer’s entitlement.

Therefore, from a legal point of view, an employer can, at any time, decide to cancel remote work and request that its employees return to the office. Obviously, the employer should fulfil its primary duty so as to ensure safe and hygienic conditions at the workplace, and to organise the employees’ work in such a way that potential threats to their life and health have been eliminated, as well as taking all possible preventative measures. It is not just about the statutory obligations related to providing employees with hand sanitisers, masks and maintaining a distance of 1.5 metres from other workstations. The employer can also introduce other rules to protect the health of their employees as long as they do not infringe on the freedom or privacy of their team members.

Under the COVID-19 Act, if an employer organises the work appropriately, the staff members cannot argue that they are afraid of contracting COVID-19 and therefore cannot follow their employer’s instructions. In this situation, the employer should make the personnel aware that the pandemic does not release them from the obligation to perform their duties in the manner indicated by their supervisor. In extraordinary cases, the employer can consider giving an employee a warning letter or even a more formal reprimand for not observing the employer’s guidelines.

Overdue Holiday Challenge

Another topic that requires change and has been under discussion in Poland is the issue of outstanding holidays. As a rule, employers in Poland cannot enforce vacation time against the employee's wishes (either paid or unpaid vacation). The Labour Code stipulates that personnel have to take leave on an ongoing basis, no later than September 30th of the following year, but firms do not have any legal means to demand from their staff members that they use up their vacation before the end of September. At the same time, in the event of the termination of employment of an employee who has outstanding holiday, the employer is obliged to pay a cash equivalent for each day of unused vacation. This legal situation forces employers to establish financial reserves that freeze the companies’ money in the event of large vacation arrears.

Only under the COVID-19 Act do employers receive a temporary right to grant their employees their overdue vacation from the previous years, up to 30 days, without the employee’s consent. This employer’s entitlement is valid only during the epidemic leave. However, businesses expect that a similar regulation will soon be included in the Labour Code and will permanently be in force in the new post-COVID-19 reality.

The Biggest Challenge: Flexible Labour Law

COVID-19 has accelerated the transformation of the labour market and swiftly forced the introduction of work from home or hybrid work. Some of the changes that have occurred are irreversible. The question is whether Polish labour law will keep up with the changing reality, or whether it will lag behind and make life more difficult for employers.

Hogan Lovells (Warszawa) LLP (Spółka partnerska) Oddział w Polsce

Pl. Trzech Krzyży 10/14
00-499 Warsaw
Poland

+48 22 529 29 00

+48 22 529 29 01

hoganlovells.warsaw@hoganlovells.com www.hoganlovells.com
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Law and Practice

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Hogan Lovells (Warszawa) LLP (Spółka partnerska) is one of the top law firms in Poland, offering a broad range of services and tax and legal expertise. The Warsaw office has more than 20 years' experience in advising clients. The Employment team works for clients operating in all sectors of the economy, both in Poland and abroad, and offers them legal advice in all aspects of employment law. The advice covers the following areas: employment aspects of mergers and acquisitions as well as cross-border mergers, including the transfer of employment establishments to new employers, and employee participation rights; restructuring of employment, including group redundancies; issues related to unionised and non-unionised employees; representing employers in negotiations with trade unions, collective disputes and disputes with employees, both inside and outside the courts, and in the case of court disputes, the firm represents clients before courts of all instances, including the Supreme Court; cross-border employment and the employment of citizens of EU and non-EU member states in Poland, including work and residency permits; and compliance, mobbing and discrimination-related issues.

Trends and Development

Authors



Hogan Lovells (Warszawa) LLP (Spółka partnerska) is one of the top law firms in Poland, offering a broad range of services and tax and legal expertise. The Warsaw office has more than 20 years' experience in advising clients. The Employment team works for clients operating in all sectors of the economy, both in Poland and abroad, and offers them legal advice in all aspects of employment law. The advice covers the following areas: employment aspects of mergers and acquisitions as well as cross-border mergers, including the transfer of employment establishments to new employers, and employee participation rights; restructuring of employment, including group redundancies; issues related to unionised and non-unionised employees; representing employers in negotiations with trade unions, collective disputes and disputes with employees, both inside and outside the courts, and in the case of court disputes, the firm represents clients before courts of all instances, including the Supreme Court; cross-border employment and the employment of citizens of EU and non-EU member states in Poland, including work and residency permits; and compliance, mobbing and discrimination-related issues.

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