Poland: Employment Law Newsletter, January - March 2017

Last Updated: 7 September 2017
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.

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