Poland: Employment Law Newsletter, January - March 2017

Last Updated: 24 January 2018
Article by Agnieszka Lisiecka

I CHANGES IN LAW

Higher minimum remuneration

On 1 January, the minimum remuneration for work was raised, so that for 2017 it is PLN 2,000 gross. It is also opportune to provide a reminder about the minimum hourly rate for contractors and the obligation to keep a record of their work hours, which we described in the previous issue of our newsletter.

Lowering the retirement age and changes in pre-retirement age protection

The Act lowering the retirement age to 60 years (for women) and 65 years (for men) was published in the January Journal of Laws. It will not come into force until 1 October 2017, however it is worth noting already that it will affect pre-retirement age protection provided under Article 39 of the Labour Code.

Employees who will be subject to pre-retirement age protection on 1 October 2017 or persons who would be covered by it, if they remained in employment on that date will be entitled to employment protection throughout the entire period until they reach the retirement age determined by the law currently in force. This means that those persons will be entitled to pre-retirement age protection also after they reach the lowered retirement age, namely 60 years (for women) or 65 (for men).

Employees who are not enjoying pre-retirement age protection on 1 October 2017, but will reach retirement age (60/65 years) before 1 October 2021 will be afforded pre-retirement age protection against termination of employment for 4 years from 1 October 2017 – also if that term ends after the person reaches the new retirement age. In practice, this situation will apply to employees who reach at least 56 years (women) or 61 years (men) on 1 October 2017 and not enjoy pre-retirement age protection for the 4 years prior to their retirement age as determined by the law currently in force, due to being too young.

II WORK IN PROGRESS ON...

Employee documentation in electronic form

The government is working on an extensive amendment to the Labour Code that would permit use of electronic form in a number of actions under labour law. The draft bill explicitly allows electronic form to be used, among others, when: concluding and terminating an employment contract, notifying a trade union about an intent to dismiss an employee, handing over a working time schedule to an employee, keeping records of working time, and filing requests for granting parenthood-related leave. Also, employees' personal files and documentation on matters associated with employment could be held in electronic form.

The draft bill also provides that, in principle, remuneration for work will be paid into bank accounts specified by employees, whereas employees will need specially to apply, if they require personal cash payments. At last, there will no longer be a need to obtain consents from employees for payments by bank transfer.

The changes are expected to come into effect on 1 June 2017.

Fuller protection of employee claims

A draft bill of the Ministry of Family, Labour and Social Policy has been sent to the Council of Ministers for legislative work. Its purpose is to speed up the granting of financial assistance to employees whose employer has become insolvent.

The concept of actual cessation of business has been better defined in the draft bill. At the same time, the draft bill specifies cases in which it would be possible to apply for advances against outstanding claims from the employer. It also extends the list of claims that may be covered by the Guaranteed Employee Benefits Fund – the draft bill permits claiming an equivalent not only for holiday leave due in the calendar year in which the employment has ended, but also for the immediately preceding year. It also extends reference periods from 9 months to 12 months, namely the periods that precede the employer's insolvency, in which employment must cease for the employee to be able to seek satisfaction of his claims. This change will result in protection for more people.

The government is in favour of the Sunday trading ban

The Council of Ministers has advocated further work on the citizen's bill limiting Sunday trading. The government stated that the matter of free from trade Sundays is a vital social issue, but that consideration should be given at the same time as to how legitimate, justified and expected citizens might find the adoption of the bill's very wide ban. The current wording of the bill was deemed too far-reaching and requiring clarification in several places. According to the government, online trading should be categorically excluded from the prohibition, along with a number of commercial establishments, such as florist's, funeral parlours, fishing enterprises and fish processors, as well as retail facilities at airports, maritime ports, bus and railway terminals, regardless of their area. In addition, the proposed sanctions for violating the prohibition, namely imprisonment, were considered too harsh.

The bill is still at the committee stage.

Social security contributions from specific task contracts?

The review of the pensions system, which was prepared by the Council of Ministers, has been submitted to the Sejm. It includes proposed changes that close loopholes in the social security system. The key proposal extends the list of types of agreements liable to pension insurance to include persons working under specific task contracts. The review points out that such contracts are concluded specifically to avoid paying contributions, which has negative consequences for the social security of persons engaged on that basis. On the other hand, the review does not intend to extend the obligation to pay sickness and accident insurance contributions to such contracts.

The next few months will show whether these proposals will find their way into specific draft bills.

III FROM THE COURTROOM

Will drivers have to repay lump sums? – Judgment of the Supreme Court, of 9 March 2017 (I PK 309/15)

The March judgment of the Supreme Court is further proof, after the November judgment of the Constitutional Tribunal (K 11/15, discussed in the previous issue of our newsletter) that the problem of payment of lump sums to drivers for sleeping in cabs has been definitively resolved in favour of transport companies. In examining the cassation appeal against the judgment issued in May 2015, in which a Regional Court awarded a lump sum to a driver, the Supreme Court ruled that the Constitutional Tribunal's judgment withdrew the presumption of constitutionality of legal provisions under which the second instance court issued its ruling. The Supreme Court stated that, in delivering its judgment, the second instance court should consider internal employer regulations on settlement of business trips and for this reason referred the case for re-examination. This means that the Constitutional Tribunal ruling may be of significance also to judgments that have already been delivered and are final, whereas drivers will be obliged to repay the lump sums that they have been awarded so far.

We can confirm that lower instance courts are following the judgment of the Constitutional Tribunal and are dismissing drivers' claims for payments of lump sums. An employee does not have to surmise the employer's intentions or check his electronic mail when on leave – judgment of the Supreme Court dated 8 March 2017 (II PK 26/16)

The case concerned an IT specialist, dismissed on disciplinary grounds, due to failure to attend work after a recall from leave. At first, the employee's superior tried to recall him from leave by telephone. However, the IT specialist was driving at that time, so the call was interrupted. The manager did not call again. Instead, he sent an e-mail to the employee's private e-mail address. The employee failed to read it on the same day.

The company which lodged the cassation appeal maintained that the employee should have called back in order to find out what his employer had wanted, and that he should have checked his e-mail. The Supreme Court did not agree with this reasoning. In the Court's opinion, an employer's statement must be clear and distinct, as it not the employee's role to probe his employer's intentions. The Supreme Court also stated that an employee who is on leave is not obliged to check his e-mail every day, especially as the message recalling the employee from his leave was sent to his private address which the parties had never used before to communicate.

It is acceptable to prohibit the wearing of visible symbols of a religious, political or outlook-related nature in a workplace, as long as it is justified by the employer's practiced policy of neutrality and necessary

This was confirmed by judgments of 14 March 2017 of the Court of Justice of the European Union, in cases C-157/15 and C-188/15.

In the first case, in a judgment issued in a preliminary ruling request from a Belgian court, the CJEU ruled that if the workplace regulations prohibit the wearing of any visible signs of creeds or convictions, there can be no differentiation between employees, because each of them is obliged to dress neutrally. The apparently neutral obligation might, though, in reality, put the followers of a particular religion, or belief at a particular disadvantage. It would not amount to indirect discrimination, provided that it was objectively justified by a legitimate aim (such as the employer's desire to manifest a policy of political, outlook-related and religious neutrality in relations with its customers), and remains appropriate and necessary (therefore, the prohibition applies only to those employees that are required to have contact with the employer's customers).

In the latter judgement, issued in response to an application for a preliminary ruling from a French court, the CJEU confirmed that unequal treatment does not amount to indirect discrimination, if it is objectively justified by a legitimate aim, such as implementation of a policy of neutrality towards the company's customers, and the means of achieving that aim are appropriate and necessary. Unequal treatment based on a feature related to religion will also not constitute discrimination, if there exists a requirement that is objectively dictated by the nature of the occupational activities involved, or by the conditions in which they are carried out. Nonetheless, they may not include subjective considerations, such as the employer's desire to take particular wishes of a customer into account.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions