Zatrudnienie

FAQ

55
Recruitment and Employment
What requirements must an office meet?

It is obvious that the law requires that buildings and other facilities be safe for employees; however, the provisions of the Labor Code along with the regulations of the Minister of Labor and Social Policy and the Minister of Health, set out additional detailed requirements for the premises and equipment used by employees. One of the fundamental responsibilities of the employer in this respect is to keep the work premises clean and in good order. This entails an obligation for the employer to carry out periodic repairs and maintenance work.

In practice:

Each employee must have a certain amount of free space (space not taken up by furniture or other work equipment) in which to work: a minimum of 13 m3 including at least 2 m2 of floor space. The minimum height of premises without air conditioning is 3 meters and that of air-conditioned premises is 2.5 meters. Labor law provisions also set out the requirements for doors, windows, floors, stairs, walls, and ceilings. An employer employing up to 20 employees must provide them with a toilet and a washbasin, and if more than 20 employees are employed, there is an additional obligation to provide a dining area.

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Recruitment and Employment
Is an employer entitled to ask job candidates or employees about their financial standing?

Under current legislation, there are no legal grounds for employers to examine the financial situation or credit history of employees or job candidates. This may change in the future in connection with the coming into force of the GDPR (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC).

This state of affairs is surprising to many foreign employers because in many European countries such checks are legal. In Poland, even where there is a risk that the employee might inflict substantial damage to the employer’s property (by working in positions involving personal liability, executive positions or positions where a high level of trust is required), there is no law that would permit employers to acquire information related to an employee’s financial standing.

In practice:

The Provision of Business Information and Exchange of Business Data Act (the so-called BIG Act) permits entrepreneurs to collect information about consumers and other entrepreneurs. However, even if an employer were to collect information about an employee or job candidate qua consumer under the Act (which may be considered a circumvention of the law), the employer would have to obtain the employee’s or job candidate’s authorization to make an enquiry in a business information bureau, which in turn would violate the provisions of personal data processing law.

55
Recruitment and Employment
Are employers obligated to provide working clothing to employees and cover associated expenses?

According to the guidelines issued by the Polish tax offices, the obligation to provide clothing to employees relates to clothing that is necessary for an employee to carry out his or her job safely (‘working clothing’) only. It does not extend to clothing whose main function is to improve the employer’s image (‘job clothing’); e.g. business suits. The employer may choose to provide employees with appropriate job clothing, but does not have to.

In practice:

If the employee’s job requires a uniform, the employer is obligated to provide it, and if the employer only defines a certain dress code (e.g. a white shirt and a knee-length skirt), the employee is usually obligated to provide such pieces of clothing at his/her own expense.

55
Recruitment and Employment
Are any minimum terms of employment set down by law that employers have to observe?

The minimum terms of employment relate primarily to remuneration and working time.

The remuneration specified in a contract of employment may not be lower than the minimum statutory salary (in 2018 it is PLN 2,100 gross per month for a full-time employee).

In general, working time may not exceed 8 hours in a 24-hour period and an average of 40 hours per average five-day working week within a settlement period of up to four months. Any work performed in excess of the working time standards constitutes overtime work for which an employee is entitled to additional pay.

The maximum number of overtime hours per year (as determined in a collective labor agreement, through internal workplace regulations or in employment contracts) amounts to approximately 400 hours. The maximum weekly working time including overtime must not exceed an average of 48 hours in the adopted settlement period. The minimum uninterrupted rest period amounts to 11 hours in every 24-hour period. Modifications of the general rules are possible in specific working time systems, i.e. equivalent working time, working time defined by tasks, the reduced working week, and weekend work.

Employees are also entitled to 26 working days’ paid leave per year or 20 working days if their period of employment is shorter than 10 years.

55
Recruitment and Employment
When is the employer obligated to carry out medical examinations of employees?

The Labor Code obligates employers to arrange for their employees to undergo medical examinations. The first obligatory examination is a pre-employment health assessment. Employees must also undergo periodic medical examinations. If the employee's incapacity for work due to illness lasts longer than 30 days, he/she is additionally obligated to undergo return-to-work health examinations to determine whether he/she is capable of performing work in his/her current position.

Employees are obligated to undergo periodic medical examinations:

  • Every five years if the employee does not use a computer;
  • Every four years, if the employee uses a computer;
  • Every three years if the employee is exposed to high temperature (every two years after the employee reaches the age of 45);
  • Every two years if the employee is exposed to the inhalation of harmful dust or fumes.

Medical examinations must be conducted during working hours, as far as possible. Employees are entitled to remuneration for the time spent undergoing health examinations, and when the examinations are held outside the workplace, they are entitled to reimbursement for the cost of travel in accordance with the regulations on business travel.

In practice:

It is not necessary to include any provisions regarding medical examinations in employment contracts.

55
Recruitment and Employment
What is the maximum length of a trial period?

A trial period may last for a maximum of three months, because the Labor Code stipulates this duration for a trial period contract preceding an employment contract. By law, the main purpose of the trial period contract is to assess if an employee is useful to the company. Importantly, it is easier for the employer to terminate a trial period contract than a regular employment contract, due to the absence of a duty to give reasons for termination, as well as the shorter notice times required; i.e.:

  • Three working days, if the trial period is under two weeks;
  • One week, if the trial period is longer than two weeks and shorter than 3 months;
  • Two weeks, if the trial period is three months.
In practice:

If a trial period contract is signed for a term exceeding three months, it will be treated as an indefinite-term contract after this time.

55
Recruitment and Employment
In what situations is discrimination in employment legal?

A ban on discrimination is one of the fundamental prohibitions imposed by the labor law on employers. There are situations, however, in which the employer can discriminate between employees without breaking the law. The major exception to the general rule is “positive discrimination”, i.e. a situation where the employer puts into effect temporary or permanent measures to provide equal opportunities to individuals and groups subject to discrimination based on their sex, ethnic origin, religion, sexual orientation, disability and other characteristics.

In practice:

Employers can differentially treat employees based on objective criteria, for example, by making the company’s rules of remuneration, promotion and access to training dependent on the length of an employee’s service. Such measures will not be treated as discrimination, even though they entail differential treatment of employees on account of their age.

55
Recruitment and Employment
Can a hiring announcement expose an employer to allegations of discrimination in employment?

Yes. Polish labor law prohibits discrimination against any employees, including job seekers. The Labor Code contains a list of protected characteristics, which includes, among others, sex, age, disability, race, nationality, political views, trade union membership, ethnic origin, religion and sexual orientation.

The publication of job announcements that place requirements on job candidates on the basis of the above characteristics may cause the employer to face allegations of discrimination in employment.

An example of language that discriminates based on sex is the use of a position’s name that unnecessarily narrows down the choice of candidates to one sex only, e.g. “Waitresses wanted” or “Job opening: female hairdresser”. Announcements that contain phrases such as “Young people wanted” or “Work opportunity for a person under forty” may be treated as discriminating based on age.
In accordance with the Labor Code, anyone whose employer has violated the principle of equal treatment in employment has the right to receive damages not lower than the statutory minimum salary. This right also extends to job candidates.

In practice:

If the employer differentiates candidates on the basis of protected characteristics for objective reasons, this will not be treated as discrimination. For example, an employer seeking employees to perform work that is particularly physically demanding or harmful for the health of women (e.g. miners) has the right to state in the job announcement that the position is for men only.

55
Recruitment and Employment
Can an employment contract with a Polish employee be governed by the law of a foreign country?

Yes: European Union law (Regulation of the European Parliament and of the Council (EC) No. 593/2008) permits parties to choose the law governing a given employment contract. The selection of a foreign law may not, however, deprive employees of the protections afforded by the regulations of the country in which the employee usually performs work or the country in which the employer has its registered office.

In practice:

In the case of an employment contract with an employee working in Poland or when the employer’s registered office being in Poland, even if the contract between them will be governed by the law of a foreign country, the minimum guarantees resulting from Polish legal regulations will apply. Foreign regulations may be applied if their provisions are more advantageous than those resulting from Polish law, e.g. notice periods or holiday leave longer than the Polish minimum.

55
Recruitment and Employment
Is it possible for a trial period contract containing an automatic extension to an indefinite term to be signed?

Yes, labor law allows for such a possibility. In accordance with the Supreme Court’s judgments, it is possible to include a clause in a trial period employment contract, stipulating that after the contract’s duration expires it will automatically become an indefinite term contract.

In practice:

Inserting such a clause may put the employer at some risk. The trial period is a period during which the employer can assess if an employee is fit for a particular job. If the employer includes such a clause in the contract and is then unable (e.g. due to a long illness), to assess the employee’s fitness, the contract will automatically convert into an indefinite-term contract regardless, even if the employee is not fit for the job.

55
Recruitment and Employment
How many trial period contracts may be signed with the same employee?

Generally, a trial period contract may be executed only once – with the same employee and in the same position. This results from the fact that the purpose of such a contract is to check the employee’s skills in performing duties in a specific position and his/her fitness to do the job. It is not important if the employer uses up the maximum period of three months for which the contract may be executed.

Another trial period contract may be signed with the same employee if:

  • The employee is to be hired to perform other work than that specified in the previous trial period contract;
  • The employee is to be hired to perform the same type of work after at least 3 years from the date of termination or expiry of the previous employment contract (a trial period contract may be signed again only once).
55
Recruitment and Employment
For how long may a term employment contract be signed?

A definite-term employment contract may be signed for a period of up to 33 months. If subsequent definite-term employment contracts are signed, the total employment period under such contracts may not exceed 33 months.

An contract signed for a longer term (except when permitted by law) automatically becomes an indefinite term contract as of the date following the end of the 33-month term.

55
Recruitment and Employment
Can a minor be employed under an employment contract?

Employment of minors under 16 years of age is prohibited except when work is performed for an entity that conducts cultural, artistic, sports or advertising activities. In this case, consent of the child’s parent or custodian and a permit of the competent labor inspector are required.

An employment contract may be executed with a person between 16 and 18 years of age, provided that the person has completed a secondary school and has a medical certificate certifying that the work to be performed does not pose a threat to his/her health. Employment contracts may be executed with persons aged between 16 and 18 for purposes of vocational training or to perform light work.

In practice:

Employees aged between 16 and 18 are obligated to continue education, so the employer has a duty to ensure that they are able to comply with their schooling obligation.

55
Recruitment and Employment
How many definite-term contracts may be executed between the same parties?

In line with Article 25(1) of the Labor Code, the total period of employment under definite-term employment contracts executed between the same parties may not exceed 33 months and the total number of those contracts may not exceed three.

The execution of the fourth definite-term contract results, from the date of its execution, in its automatic conversion into an indefinite-term contract. When the total term of such contracts exceeds 33 months, the result will be the same.

55
Recruitment and Employment
In what situations must the Labor Inspection Office be notified about the execution of a definite-term contract?

The employer must notify a district labor inspector competent for the location of the establishment about signing a definite-term employment contract when the employer indicates objective reasons attributable to the employer. The notification must be made in writing or by email stating reasons for the execution of this type of contract.

Notification of the Labor Inspection Office is not necessary when a definite-term employment contract is signed in different situations, e.g. for casual or seasonal jobs.

The time to comply with this duty for newly executed contracts is 5 days from their execution and for existing contracts – 5 days from an amendment including the necessary information stated above. Failure to comply with the notification obligation is an offence against employee rights and is punishable by a fine of up to PLN 30,000 (Article 281 of the Labor Code).

55
Recruitment and Employment
What provisions must be included in a definite-term employment contract?

An employment contract for a definite-term of up to 33 months must contain all elements typical of an employment contract; namely, it should indicate its parties, type, the date of its execution and terms of work and pay, and in particular:

  • Type of work;
  • Place of work performance;
  • Remuneration for work;
  • Working time; and
  • The work starting date.

In addition, a contract for a period longer than 33 months whose execution is permissible only in the cases set out in Article 25(1) §4 of the Labor Code, must also state the purpose or circumstance of the case by including information about objective reasons justifying the execution of such a contract (Article 29 §11 of the Labor Code).

55
Recruitment and Employment
What is the deadline for amendments to definite-term employment contracts executed before 22 February 2016?

The parties do not have to amend employment contracts that are executed for a period shorter than 33 months. The only change in the terms of employment is the extension of the notice period. Contracts signed for periods longer than 33 months should have been amended by adding the reason for executing them for such a long period. This had to be done by 22 May 2016 (i.e. 3 months from the date of the Act Amending the Labor Code and Certain Other Acts of 25 June 2015 coming into force). In addition, if a contract is made for objective reasons attributable to the employer, the employer must notify an appropriate district labor inspector within 5 days from the execution of the amendment.

55
Recruitment and Employment
When can a definite term contract be signed for a period longer than 33 months?

Situations in which it is possible to execute a contract for a definite term longer than 33 months are regulated by Article 251 §4 of the Labor Code. A definite term contract in these situations may be signed only when its execution meets periodical needs and is necessary in this respect in light of all circumstances of its signing. The circumstances include:

  • Substitution for an employee during his/her excused absence from work;
  • Performance of casual or seasonal work;
  • Performance of work during a term in office; and
  • Indication, by the employer, of objective reasons attributable to the employer.

Execution of a definite-term contract when the employer indicates objective reasons attributable to it, results in an obligation to notify an appropriate district labor inspector in writing or by email about the execution of this contract and to give the reason why the contract was executed. The time-limit to comply with this duty for newly executed contracts is 5 days from their execution and for existing contracts – 5 days from their amendment including the necessary information stated above.

55
Recruitment and Employment
Can an employee start work without a prior execution of an employment contract?

Generally, yes. But in the case when an employment contract is not executed in writing, the employer has a duty to deliver to the employee, at the latest on the day the work starts, a written confirmation of the arrangements regarding the contractual parties, contract type and its terms.

55
Recruitment and Employment
Must an employee working in two positions with one employer have two employment contracts?

The labor law does not regulate this issue expressly. Execution of two employment contracts with the same employee is not prohibited if the nature of the performed works differs. It may not lead, however, to a breach of working time and overtime pay provisions. The law also permits a situation when an employee has more than one position or when the type of his/her duties is broadly defined.

55
Recruitment and Employment
What are the employer’s duties when extending an existing settlement period?

The basic duty of the employer who intends to extend the settlement period is to consult this intention with the employee representation. Without the consent of the staff the extension is not possible. The settlement period extension must have the form of:

  • A collective bargaining arrangement, or
  • An agreement with the company trade unions.

In the case when no trade unions operate at the employer’s establishment, the introduction of an extended settlement period must be consulted with employee representatives selected in a procedure adopted by the employer. The employer is obligated to notify a competent district labor inspector about the executed agreement, within five days of its execution. The employer is also obligated to prepare work time schedules that must be made for a period of at least one month.

55
Recruitment and Employment
Can a contractual penalty be stipulated in an employment contract?

It is permissible to stipulate a contractual penalty in an employment contract only if the penalty is for the employee’s benefit. In its judgment of 8 November 2012 (II PK 103/12) the Supreme Court stated that it is not contrary to labor law rules to stipulate a contractual penalty for the employee’s benefit in the case the employment contract is terminated by the employer in breach of its conditions. Conversely, a contractual penalty stipulated for the benefit of the employer is prohibited under the provisions of labor law and is invalid.

In practice:

A contractual penalty may be stipulated in a non-competition contract. This, however, applies only to the competition prohibition after the end of employment if the obligation to refrain from competing against the former employee is not performed at all or is performed negligently. An employee’s refusal to sign a non-competition contract with a provision stipulating a contractual penalty may not be the reason for giving notice to terminate employment.

55
Recruitment and Employment
When does the employer not have to refer an employee for pre-employment medical examinations?

The following employees are not referred for pre-employment medical examinations:

  • Employees rehired by the same employer for the same position or a position with the same work conditions, under another employment contract signed within 30 days after the dissolution or expiry of the previous employment contract with that employer;
  • Employees hired by a different employer within 30 days after the dissolution or expiry of the previous employment relationship, if they present a valid medical certificate certifying the lack of contraindications to work in the working conditions described in the referral for pre-employment medical examinations and the employer finds that such conditions are similar to those in that work position (except for persons hired to perform particularly hazardous work).
55
Recruitment and Employment
May an employer prohibit additional employment to employees?

Prohibition of undertaking additional employment may be contrary to the general rule of the right to work (Article 10 §1 of the Labor Code). To protect its interests, an employer may, however, prohibit employees from undertaking employment with any competitive entities by entering into a non-compete contract.

Since employees are obligated to take care of the employer’s interests, in practice it is permissible to include in an employment contract, in justified cases, an obligation to obtain the employer’s consent to any additional employment to be undertaken by the employee.

Case law:

The Supreme Court in its judgment of 2 April 2008 (file ref. II PK 268/07) ruled that a provision in an employment contract that prohibits additional employment not being a competitive activity with that of the employer is invalid (Article 58 §1 of the Civil Code in conjunction with Article 300 of the Labor Code). Such provision is a circumvention of the prohibition resulting from Article 1011 §1 of the Labor Code.”

60
Employee Documentation
Is an employer obligated to keep working time records?

Yes, all employers are obligated to keep separate working time records for each employee. Any violation of obligations related to keeping employment-related records, including working time records, exposes an employer to liability for violating employee rights that is punishable by a fine of PLN 1,000 to PLN 30,000. Such liability may be borne by a person being the employer or a person acting on the employer’s behalf.

In practice:

Provisions relating to employee documentation, including working time records, that have been in force since 1 January 2019 permit employers to keep such documentation in hard copy or in IT systems that ensure an adequate storage security.

60
Employee Documentation
How should an employer inform employees about changes to work and remuneration regulations?

An employer is obligated to inform employees about all changes to work and remuneration regulations. It is not relevant whether an employee actually makes him/herself familiar with the changes, but it is necessary for the employer to provide them with this information.

The provisions of Article 24112 Section 2 of the Labor Code, applied in accordance with the remuneration regulations, stipulate that an employer is obligated to inform its employees that the changes will come into force, and, at an employee’s request, to make the text of the amended regulations available to that employee and provide clarification regarding their contents. Consequently, it is possible for an employer to give employees access to the amended regulations after they have come into force, as their coming into force does not depend on whether (and when) they are made available to employees, only on their announcement. The amended regulations are binding even if the employer does not comply with the obligation set out in Article 24112 Section 2 of the Labor Code.

In practice:

The provisions of labor law mandate that records of written-form declarations by employees acknowledging that the employee has read the internal workplace regulations be kept for evidentiary purposes. In the case of other regulations, no written form of acknowledgement is required, but it is a good idea to keep such records for evidentiary purposes. The written declaration prevents employees from being able to avoid compliance with the regulations by claiming that they have not read them.

60
Employee Documentation
Do contracts of employment have to be in writing?

Generally, yes.

In practice:

In the event that an employment contract is not executed in written form, the employer is obligated to confirm in writing the terms of employment (such as the remuneration, job description, place of work, working time, and work commencement date) no later than on the day on which the employee begins work.

60
Employee Documentation
Must an employment contract be written in Polish to be enforceable?

Yes, this obligation results from the Polish Language Act. An employment contract may additionally be executed in any other language but due to the above obligation the Polish version must prevail.

If the employee is a foreigner and uses a foreign language, the contract may be executed in that foreign language only, on the employee’s request, provided that the employee has been previously advised of his/her right to have the contract drafted in Polish.

In practice:

Bilingual agreements may be made in a two-column format or as two separate documents. The Polish version does not have to be a certified translation.

60
Employee Documentation
In what conditions must employee documentation be stored?

Employers must keep and store – in hardcopy or electronic format – employee documentation in a manner that ensures its confidentiality, integrity, completeness and accessibility, in conditions that do not pose a threat of damage or destruction throughout the period of employment. Detailed guidelines concerning the conditions in which employee documentation must be stored can be found in the Minister of Culture’s 15 February 2005 Regulation. In accordance with the Regulation, the storage premises must be dry, fit for purpose, fitted with a fireproof door and fire alarm, and protected against burglary by means of an alarm system, or otherwise, as appropriate for the premises. Items and equipment that are not directly related to documentation storage cannot be stored in the storage area.

Employers who store employee documentation in conditions that pose a risk of damage or destruction are liable to pay a fine of up to PLN 30,000.

 

In practice:

Since 1 January 2019, under employee documentation provisions, employers may choose the form in which they will keep employee records, namely hardcopy or electronic format.

60
Employee Documentation
When can a civil-law contract be treated as an employment contract?

Article 22.1(2) prohibits the execution of civil law contracts when the relationship between parties is in fact an employment relationship. Whether this is so is determined by the following circumstances:

  • The person employed provides work in person and at the place and time indicated by the employer;
  • The work is provided for a payment;
  • In performing the work, the employee is subordinate to the employer;
  • The employer bears liability for the consequences of the employee’s actions;
  • The work performed is continuous and repeatable.

If the above circumstances are met, and irrespective of what the executed civil-law contract is called (e.g. a mandate or specific task contract), the person employed under the contract may file a lawsuit with a court to determine the existence of an employment relationship. Such a lawsuit may be also filed by a labor inspector and any other persons having a legal interest in the matter, e.g. the heirs of the deceased employee.

In practice:

When determining whether an employment relationship exists, the court examines the circumstances of the contractual relationship and what the employee actually does under the contract, on the basis of witness testimonies and relevant documents. In particular, it is important for the court to establish the joint intention of the parties when they signed the contract.

60
Employee Documentation
How long may information about a disciplinary penalty imposed on employees be kept in their personnel files?

A copy of a notice about the penalty is removed (and considered as non-existent) from the personnel files of an employee after one year of impeccable work. The employer may, on its own initiative or on request of the trade union representing the employee, declare the penalty non-existent before the end of one year.

Information about the contractual penalty must be also removed from personnel files after the employee’s objection to the penalty is granted or after a final and binding ruling of a labor court sets the penalty aside.

60
Employee Documentation
Can an employee require a copy of his/her personnel files from the employer?

In accordance with the Labor Code, both present and former employees must have access to their personnel files. Employees have the right to receive a copy of the entire employee documentation or its part at any time.

On an employee’s request made in hard copy or sent in electronic format, an employer must give the entire employee documentation or its part to former employees, and in the case of their death—to a closest family member, i.e. own children, children of the other spouse and adopted children; grandchildren, siblings and other children taken for upbringing and maintenance before they come of age, except for children taken for upbringing and maintenance in a foster family or a family-type children’s home; a spouse (both a widow and a widower); parents, including step-father and step-mother and adopters.

The GDPR, (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) also provides that an employee may request that a copy of his/her personnel files be given to him/her.

60
Employee Documentation
When must an employment certificate be issued?

If the employer does not intend to enter into another employment relationship with the employee, such employer must issue an employment certificate on the date on which the employment relationship terminates, at the latest within 7 days of the date of the termination or expiry of the employment.

If for objective reasons the employment certificate may not be issued to the employee or a person authorized by him/her within such time limit, the employer must within 7 days of the expiry of this deadline send the employment certificate to the employee or that person by regular mail or deliver it otherwise.

The employer does not have to issue an employment certificate to an employee if within 7 days of the previous employment relationship terminating or expiring another employment relationship is entered into with the same employer. In such situation an employment certificate must be issued only on an employee’s request filed in written form or on-line at any time.

60
Employee Documentation
What information must the employer include in the employment certificate on an employee’s request?

On the employee’s request, information about the remuneration amount and its elements and any qualifications obtained during employment must be included in the employment certificate. The request may be given both orally or in writing in reasonable advance to enable the employer to include the required information in the certificate.

60
Employee Documentation
Must an employee working in two positions for one employer undergo medical examinations and occupational health and safety training twice?

No. Obligations related to examinations and training are connected with work positions, not employees. If, therefore, the employer intends to entrust two work positions to an employee, he/she must obtain, for each of these positions separately, a medical certificate certifying the absence of contraindications to the performance of work. This is also the case with occupational health and safety (OHSA) training; no employee may be permitted to work in a given position without an appropriate OHSA training.

The employer who permits an employee to work without the required medical examinations or OHSA training violates OHSA regulations. This violation is punishable by a fine of PLN 1,000 to PLN 30,000.

60
Employee Documentation
What changes were introduced by the Labor Code amendment that came into effect on 22 February 2016?

The Act Amending the Labor Code and Certain Other Acts of 25 June 2015 that came into force on 22 February 2016 introduced a number of changes in employment rules, in particular as regards indefinite-term employment contracts.

The most important include:

  • Limitation of the number of employment contract types to three: indefinite- and definite-term and trial-period;
  • Introduction of a maximum period of 33 months for which the definite-term employment contract may be executed;
  • Introduction, in definite-term contracts, of the possibility of terminating such contracts with a notice period that depends on the length of service with the employer; these periods are the same as in the case of indefinite-term employment contracts and are:
    • two weeks, if the employee has been employed for a period of up to six months;
    • one month, if the employee has been employed for at least six months; and
    • three months, if the employee has been employed for at least three years;
  • Limitation of the number of definite-term employment contracts to three; and
  • The employer does not have to obtain the employees’ consent to release them from the obligation to work during the termination notice period (‘garden leave’).
60
Employee Documentation
Is it necessary to amend agreements whose termination notice period changed after 22 February 2016?

Employers do not have to adjust employment contracts to the new regulations. In accordance with Article 29 §3(2) of the Labor Code, however, the employer must notify employees in writing about the new length of their notice periods without delay but not later than one month from the date of the change taking effect.

The parties must amend an existing contract only when it was executed for a period longer than 33 months. In such a situation, information must be added to the contract about objective reasons why the contract was executed for such a long term.

60
Employee Documentation
What rights do employees have if the employer does not issue at all or issues an erroneous employment certificate?

An employee may request an employer to correct an employment certificate within 14 days of its receipt. If the request is not complied with, the employee may request a labor court to correct the certificate within 14 days of receiving the employer’s refusal.

The amendment of the Labor Code that came into force on 7 September 2019 introduced new rights of employees concerning employment certificates. In a situation when the employer does not issue an employment certificate at all, the employee has a right to request a labor court to require the employer to issue such a certificate.

If the employer no longer exists or it is impossible to file a lawsuit to require the employer to issue an employment certificate, then the employee has a right to request a labor court to establish a right to receive an employment certificate.

76
Salaries
What remuneration should an employee receive for a business trip?

The duration of a trip (i.e. the time spent traveling to and from the place where work tasks are performed) is not included in working time since it constitutes time not dedicated to performing work activities, unless it occurs during an employee’s working hours. As a result, business travel outside of working hours does not create any obligation to pay additional remuneration to an employee (with certain exceptions). However, if the journey took up all of an employee’s working hours and, in addition to traveling, the employee then performs a specific work-related task, he/she is entitled to receive remuneration for the performance of that task in accordance with Article 134 of the Labor Code.

In practice:

If an employee’s scheduled working hours last from 8 am to 4, and if the employee begins a business trip at 8 am, arrives at the destination at 3 pm, works until 11 pm and returns home at 8 am next day, then: (i) the travel from 8 am to 3 pm is considered working time; (ii) the work performed from 3 pm to 4 pm is in line with the working time schedule and is also considered working time; (iii) however, the work performed from 4 pm to 11 pm is considered overtime work for which the employee is entitled to receive time off or additional remuneration.

The travel period between 11 pm and 8 am on next day is not considered working time because it is not dedicated to performing work and it takes place outside the working hours of the employee.

76
Salaries
Is it necessary to pay severance pay to employees if their workplace is transferred to a different employer?

No. In accordance with a well-established line of judgments of the Supreme Court (in particular, the judgment of 18 June 2009, Case No. III PZP 1/09), the procedure for the termination of an employment contract by the employee defined in Article 231 §4 of the Labor Code does not entitle an employee to the severance payment specified in Article 8 of the Collective Redundancy Act, except when the employee terminates the agreement in response to a material adverse change in working conditions.

In exercising the right to terminate an employment contract after a transfer of an employment establishment, an employee does not have to indicate the reasons behind his/her decision. However, if he/she wishes to be awarded severance pay, he/she is required to substantiate the claim that there has been a material deterioration of his/her working conditions. In the event of a court dispute over severance pay, the burden of proof that such a deterioration has occurred lies with the employee.

In practice:

In the situation when an employee responds to the change of employer by terminating the employment (with a seven-day advance notice period), he/she is considered to have made an individual decision that he/she does not want to work for the new employer. The termination of the employment contract in this procedure is not usually related to any deterioration of his/her terms of employment.

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May an employer deduct sums owed by employees from their salary, bonuses or commissions?

Yes, but deductions from an employee's pay are limited. Net of social insurance premiums and advance payments for personal income tax, only the following sums may be deducted from the employee’s pay:

  • Sums enforced on the basis of a writ of execution in respect of alimony and maintenance (up to 3/5 of the salary);
  • Sums enforced on the basis of a writ of execution in respect of any court-awarded payments other than alimony and maintenance (up to 1/2 of the salary);
  • Reimbursement of any cash advances given to the employee (up to 1/2 of the salary);
  • Pecuniary penalties for failure to observe company policies and workplace regulations (up to 1/10 of the salary).

The following amounts of remuneration for work are free of any deductions:

  • The statutory minimum salary (PLN 2,250 in 2019), if the deduction results from writs of execution related to obligations other than maintenance and alimony,
  • 75 per cent of the statutory minimum remuneration, if the deduction reflects the repayment of advances to the employee;
  • 90 per cent of the statutory minimum remuneration, if the deduction reflects financial penalties.

The employer may deduct other sums from the employee’s salary only with the employee’s written consent. In such case, the amount free of any deduction will be either the amount of the minimum salary when amounts due are deducted for the employer’s benefit or 80% of the above amount when other amounts due are deducted.

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What is the difference between a bonus and an award?

An award (nagroda) is a discretionary and non-guaranteed benefit, the granting of which depends only on an employer’s free choice. A bonus (premia) is of a claimable nature. An employee acquires the right to a bonus after meeting the requirements set by the employer in the remuneration regulations or his/her employment contract.

The names for benefits used by employers may be misleading and are of no major significance. It is the nature of the benefits that determines their type. If the employer stipulates in the remuneration regulations that employees who meet certain requirements (e.g. achieve a certain level of sales), have the right to a “discretionary award”, the benefit is legally a bonus, as it is claimable and guaranteed for all employees who satisfy the requirements, regardless of the employer’s willingness to give the benefit to any particular employee.

In practice:

To avoid ambiguities as to whether benefit qualifies as a bonus or an award, employers should be precise in enumerating benefits where appropriate in the company’s internal regulations or its employment contracts. If a benefit is intended as an award, the employer should state only that the grant of the award, its value and the date of its payment are at the employer’s sole discretion. When setting out bonuses, the employer must define clear and objective eligibility criteria or conditions that specify how, when and to whom the bonus is to be granted.

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Salaries
When and in what amount are employees entitled to a business trip allowance?

An employee who travels for business for at least 8 hours is entitled to an allowance to cover the increased costs of meals. The domestic travel allowance now amounts to PLN 30 per day and is determined according to the following rules:

If the journey time is under 24 hours and is:

  • Between 8 and 12 hours – the employee is entitled to 50% of the allowance;
  • More than 12 hours – the employee is entitled to the full allowance amount.

The allowance is not payable if the employer provides full board for the employee for the entire period of the journey. The allowance amount is reduced by each meal provided by the employer: by 25% of the allowance (each) in the case of breakfast and dinner, and by 50% of the allowance in the case of lunch.

In practice:

The rules for the calculation of an allowance for a trip abroad are different. The base amount for further calculations varies from country to country. For example, the full daily allowance in the UK is £35, while in France it is €50. A detailed table of daily allowance amounts is included in the Regulation of the Minister of Labor and Social Policy regarding amounts due to employees of state or local government funded public sector units in respect of business trips.

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Salaries
Must an employee consent to a pay rise?

The Labor Code does not indicate any rules for granting pay rises. In accordance with Article 29 §4 of the Labor Code, each and every modification of employment contract terms requires a written form. As remuneration is an important element of any employment contract, its change (both to the employee’s advantage and disadvantage) may be introduced by an agreement of the parties or a termination notice amending terms of employment.

Case law:

According to the Supreme Court ruling of 21 October 2003 (file ref. I PK 512/02), an express or implied consent of the employee is required for any change in remuneration terms (even a pay rise).

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Salaries
When must the employer pay weekly overtime?

Working time must be settled after the lapse of the time for which remuneration is paid or after the end of the settlement period. In accordance with provisions of the Labor Code, overtime hours resulting from exceeding the average weekly working time limits are settled after the end of the settlement period.

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Salaries
When must the employer pay daily overtime?

Working time must be settled after the lapse of the time for which remuneration is paid or after the end of the settlement period. In accordance with provisions of the Labor Code, overtime hours resulting from exceeding daily working time limits are settled at the same time as remuneration is paid (most frequently on a monthly basis).

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Salaries
How is the equivalent for unused leave calculated?

The equivalent for unused leave is calculated using the coefficient specified in the Regulation of the Labor and Social Policy Minister Regarding Detailed Rules for Granting Holiday Leave, Calculation and Payment of Remuneration for Leave Duration and a Cash Leave Equivalent.

This coefficient is updated each year and is calculated by deducting, from the number of days in a calendar year, the total number of Sundays, holidays and days off resulting from the working time schedule in an average five-day working week in that year, and the result is divided by 12. The equivalent of an employee’s unused holiday leave is calculated by dividing the sum of monthly remuneration by the above coefficient, and then by dividing the result by the number of hours of the daily working time limit of that employee. The result is multiplied by the number of hours of the holiday leave not taken by the employee.

In practice:

In practice: For example, in 2018, calculation for a full-time employee working 5 days a week, 8 hours a day, with the remuneration of PLN 3,000, who is entitled to the equivalent for 5 days of unused leave is as follows:

  • There are 114 days off in 2018 (including Saturdays, Sundays and holidays);
  • (365 – 114) = 251 / 12 = 21
  • PLN 3,000 / 21 = PLN 142.86
  • PLN 142.86 / 8 hours = PLN 17.86
  • PLN 17.86 x (5 days x 8 hours) = PLN 17.86 x 40 = PLN 714.40
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Salaries
Can an employee’s salary be expressed in a foreign currency?

Yes, an employee’s salary may be expressed both in a foreign currency and as a PLN equivalent. In the event when the employment contract stipulates the remuneration amount only in a foreign currency, the employer has the right to choose between payment in that currency and PLN, unless a detailed regulation or a court ruling stipulate otherwise.

In practice:

Unless an employment contract, a court ruling or a detailed regulation stipulate otherwise, the value of the foreign currency must be calculated using the average exchange rate promulgated by the National Bank of Poland on the day on which the salary is due to be paid.

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Salaries
In what form can salaries be paid?

Salaries are generally paid in cash. Partial payment of remuneration in any other form than cash (in-kind) is permissible only when provided by labor law provisions or a collective bargaining arrangement. Remuneration is paid into a bank account indicated by the employee unless such employee has made a request, in hard copy or on-line, that remuneration should be paid to him/her in cash.

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Salaries
When must employers pay the seniority benefit?

The seniority benefit is provided only for employees of the State budget funded sector and teachers. Optionally, the benefit may be provided in internal regulations (a collective bargaining agreement, remuneration regulations) with a specification of the conditions for its payment.

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Are employees entitled to receive remuneration for defective work?

No. Remuneration does not have to be paid for products or services defectively performed through the employee’s fault. If the quality of a product or service is lower as a result of the employee’s defective work, the remuneration is reduced accordingly. The employee may be deprived of remuneration partially or entirely. The employee is not responsible for defective products or services, if the defect results from reasons that are objective or attributable to the employer.

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When does an employee’s claim for remuneration payment expire?

An employee’s claim for payment of overdue remuneration expires after three years from the date it is due and payable, i.e. from the day on which the remuneration should have been paid.

In practice:

The mere lapse of the limitation period does not prevent the employee from pursuing a claim for payment of overdue remuneration but it enables the employer to absolve itself from the obligation to pay it by alleging in the course of court proceedings that the claim has expired by the lapse of time.

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Can the payment of remuneration be made conditional on the employee’s return of the company’s property after employment contract termination?

No. The employer may not make the payment of remuneration conditional on the return of the company’s property after employment contract termination. In accordance with the Labor Code, the employer may not unilaterally deduct any amounts due from the employee from the employee’s remuneration.

In practice:

The employer may not make the payment of other benefits to which the employee acquires rights upon termination of employment conditional on the return of the company’s property. For example, the employer may not withhold payment of severance pay related to collective redundancy or an equivalent for unused holiday leave.

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Salaries
Can employees opt out from a business trip allowance?

Yes, employees have the right to opt out from a business trip allowance and the employer has no obligation to pay that allowance. Employees may not waive the right to remuneration only. This prohibition does not cover the business trip allowance because such allowance is not treated as remuneration for work.

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When must employers pay overtime pay for exceeding daily and weekly working times?

Overtime hours resulting from exceeding daily working time must be compensated at the time the salary is paid for the month in which the overtime hours occur. This is confirmed by the Chief Labor Inspectorate (GPP-306-4560-32/09/PE/RP).

Employers must pay overtime pay resulting from exceeding average weekly working time limits (mainly as a result of work on Saturday) with the salary for the last month of a settlement period. Only then is it possible to determine whether such overtime hours occurred.

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Working Time
How is working time calculated?

Working time does not correspond to time spent performing job tasks. It is defined as any period of time during which an employee remains available to an employer in the workplace or in any other place where work is to be performed.

In practice:

Working time is not only time spent working, but also time in which an employee is ready to perform work (the employee is prepared to work and has physical and intellectual capacities to perform work), even if he/she is not performing any work at a given moment (e.g. because there are no tasks to complete).

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Working Time
What is the difference between the working time limit and working time?

Working time limits are set out in the Labor Code as the maximum number of hours an employee may work without receiving overtime pay. The current working time limits define maximum working time as 8 hours per 24-hour period and an average of 40 hours per average five-day working week in the adopted settlement period.

Within these working time limits, the employer determines each employee’s working time, i.e. the number of working hours per 24-hour period and per settlement period during which a particular employee is expected to perform work, usually expressed as a schedule of dates and times during which an employee is at the employer’s disposal in the workplace.

In common usage, working time is usually classed as either full-time or part-time, and the working time limit is the maximum number of hours of work that may be performed by an employee without overtime pay.

In practice:

Working time is calculated by multiplying 40 hours by the number of weeks in the settlement period, and by adding the product of 8 hours and the number of days left until the end of settlement period, from Monday through Friday. Each holiday during the settlement period falling on a day other than Sunday reduces the employee's working time by 8 hours in a given settlement period.

Numerical example: To calculate the working time for an full-time employee in the three-month settlement period from January to March 2018, multiply the number of full weeks during the three months (12 weeks in 2018) by 40 hours (12 x 40 = 480 hours).

To this figure, add the product of eight hours and the number of workdays falling outside full workweeks (7 days in the period January to March) (7 x 8 = 56 + 480 = 536 hours), and subtract 8 hours times the number of public holidays in this period (there were two such days) (2 x 8 = 16; 536 hours – 16 hours = 520 hours). Thus, in the period January to March 2018, the employee’s total working time is 520 hours. If the employee worked part time (e.g. half time), the working time would be 260 hours.

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Working Time
What are the features of the basic working time system?

The basic working time system has six components:

  • A 24-hour period limit: a maximum of 8 hours of work per 24 consecutive hours starting from the hour at which an employee begins working according to his/her agreed working time schedule;
  • A working week may not be longer than five working days;
  • The five-working-day limit is an average limit, which means that in particular weeks work may be performed for more than five days provided that in another week or other weeks work is performed for fewer than five days so that the average working week over the settlement period is of no more than five days;
  • A maximum of 40 hours worked per week;
  • The weekly limit is an average limit, which means that in a given week an employee may perform work for more than 40 hours on the condition that on average the employee does not work for more than 40 hours a week over the entire settlement period;
  • A settlement period, which may not be longer than four months.
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Working Time
How many hours of rest must an employee have per day?

Each employee is entitled to a minimum of 11 hours of uninterrupted daily rest per 24-hour period and to 35 hours of uninterrupted rest each week. Any period that does not form part of an employee’s working time is a rest period.

In practice:

The maximum amount of overtime work in a 24-hour period is 5 hours (24 – 11 – 8 = 5 hours).

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Working Time
When is work considered overtime?

Overtime work means working hours beyond the maximum set out in the working time limits that apply to a particular employee, as well as work performed beyond the extended working time per 24-hour period. Overtime work may not be planned in advance and must result ad hoc from an employer’s particular needs.

Full time

Part time

Daily working time: 8 hours per 24 hours

Daily working time: less than 8 hours per 24 hours

Overtime work: work beyond the permitted working time limit set out in the employment contract (if not stated, overtime starts after eight hours of work)

Work beyond the permitted working time limit set out in the employment contract

In practice:

Overtime does not include the time during which an employee makes up for time off granted at his written request to handle personal affairs (e.g. a situation where an employee leaves for two hours in order to deal with his personal affairs and stays at work past his usual working hours to make up for the time spent on leave).

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Working Time
How are employees compensated for work on Sundays and public holidays?

STEP 1
In exchange for work on Sundays and holidays, an employee always has the right to a full day off, irrespective of the employee’s working time on such days.

STEP 2
First, an employee should be granted a day off.

STEP 3
The day off should be granted:

  • If the work is performed on a Sunday - in the course of the six days preceding or following that Sunday;
  • If the work is performed on a public holiday - by the end of the settlement period.

STEP 4
If it is impossible to grant an employee a day off within these times, an employee is entitled to receive overtime pay in the amount of 100% for each hour of work.

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Working Time
When can work be performed on Sundays and public holidays?

In 2014 the list of situations when it is legal to perform work on Sundays and public holidays was extended. In line with the amendment, in addition to the cases stipulated by the Labor Code (such as rescue operations or shift work) it is also permissible to work on Sundays and public holidays when such work:

  • Consists in providing services via electronic means of communication (within the meaning of the provisions of law relating to the rendering of electronic services) or telecommunications devices (within the meaning of telecommunications law) if the recipient of the services is located outside of the territory of Poland, and if Sundays and Polish public holidays constitute working days in the law of the country in which the service recipient is located;
  • Makes possible the provision of such services.
In practice:

If an employer operating in the outsourcing sector needs its employees to work on a public holiday (as set out in the Public Holidays Act of 18 January 1951) and if the public holiday is a working day in the country where the service recipient is based, the employer may obligate its employees to perform work on that day. The amendment makes it much easier for Polish employers to accommodate foreign business partners who require work to be performed on a public holiday.

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Working Time
Is it legal to work for two periods of working time in the same 24-hour working cycle?

An employee cannot begin a period of working time (i.e. non-overtime work) before the time set out in the general working time schedule. If the employee performed work for the full period of the working time limit and he/she performed work again during the same 24-hour period, this work is considered overtime.

If an employee is to perform work at two separate intervals in the same 24-hour working cycle, the conditions for overtime work must have to be fulfilled, and, in addition, the work must not be planned in advance, since planning overtime work may be considered as a violation of overtime work provisions (standpoint of the General Labor Inspectorate of 29 July 2008, GPP-302-4560-569/08/PE, “Rzeczpospolita” of 1 August 2008, df 3).

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Working Time
What flexible working time solutions are possible in Poland?

Since 2013 the following solutions have been applied in Poland:

  • Flexible working hours: a general working time schedule may specify different hours for the commencement of work on days which are working days for employees, as set out in the schedule;
  • Variable working hours: an employee is obligated to commence and finish work within the time-frame specified by an employer.

The defined working hours may not violate the employee’s right to an 11-hour daily rest period and a 35-hour weekly rest period.

In practice:

An example of flexible working hours would be a working time schedule in which work begins on Mondays from 8 am, on Tuesdays from 9 am, on Wednesdays from 8 am, etc. Variable working hours, on the other hand, would consist in scheduling a time range between 8 am and 10 am during which the employee is to begin his/her eight-hour work period.

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Working Time
What consequences may employers face for exceeding working time limits?

Personal liability of the employer: an employee has a right to demand overtime pay in addition to the limit remuneration for work.

Criminal liability (applies only to natural persons directly responsible for scheduling the working time of individual employees) may include a fine of PLN 1,000 to PLN 30,000 (for an offence) or a fine, limitation of liberty or imprisonment of up to two years (for a crime of a vicious or persistent violation of an employee’s rights under an employment relationship).

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Working Time
Is there a “mixed task-based” working time system?

No. The task-based system gives an employee considerable freedom in work organization. Under this system, working time is measured by the extent of the tasks assigned to the employee. Tasks in the task-based system must be assigned by the employer in such a way that the time required to complete them fits within the statutory working time limits. Pursuant to Article 140 of the Labor Code, the employer who applies the task-based working time system must comply with the working time limits in force. If the tasks assigned cannot be objectively performed within the statutory limits and overtime work is necessary, the employee may claim compensation for overtime work.

A “mixed” working time system is one in which the employee has a task-based working time system and is additionally obligated to work without additional remuneration in excess of the working time limits in force (i.e. 8 hours per 24-hour period and an average of 40 hours in an average five-day working week) until he or she completes his/her tasks. Such an arrangement is illegal and exposes the employer to claims for compensation for overtime work.

Case law:

The Supreme Court has ruled that, under the task-based system, the working time limits set out in Article 129 of the Labor Code are important at the task assignment stage. An employee working under the task-based working time system is obligated to plan his/her own time to be able to complete the tasks that must be completed in accordance with his or her contract within the legal limits, rather than make him- or herself available to the employer.

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Working Time
Who may not work for more than 8 hours per day?

Employers may not employ employees belonging to certain groups under working time systems that would demand a longer working time than 8 hours in a 24 hour period. Protected employees include:

  • Employees between 16 and 18 years of age;
  • Pregnant women;
  • Employees taking care of a child under 4 years of age (unless they consent to the longer working time);
  • Employees in positions for which maximum permissible concentrations or intensities of agents harmful to health are enumerated.
In practice:

Even if the protected persons (except employees taking care of a child under 4 years of age) give their consent, this will not legalize their work over 8 hours per day.

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Working Time
What is the equivalent working time system?

The equivalent working time system permits employers to extend an employee’s maximum daily working time to up to 12 hours. This extension is possible if it is dictated by the type or requirements of correct organization of the work being performed. Generally, the settlement period of the equivalent working time system does not exceed one month. If the extended working time system is applied, the employer must compensate employees who work an extended number of hours on a given day with shorter daily working time on other days or with days off before the end of the settlement period.

In practice:

The use of the equivalent working time system permits employers to use the full potential of their staff by making it possible to adjust the work schedule to current workload and thereby rationalize labor costs while retaining the same staff level. For example, an employer facing high workload at the end of the month may assign 12-hour working days in the last week of the month, whereas at the beginning of the month, where there is the least work, employees can be assigned to work for less than 8 hours per day.

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Working Time
Can employers introduce breaks that are not included in working time?

Yes. Employers may introduce one break of up to 60 minutes that is not counted as working time. A provision introducing such a break may be included in:

  • A collective bargaining arrangement,
  • The workplace regulations, or
  • An employment contract, if the employer is not covered by a collective bargaining arrangement or is not obligated to introduce workplace regulations.

Employees may use such a break in any way, e.g. to have a meal or attend to their personal business. This does not exclude the possibility of introducing other breaks that are included in working time, e.g. a 15-minute break for employees whose daily working time is at least 6 hours, a 5-minute break for employees working in front of computer screens, or a break for breastfeeding mothers.

In practice:

Employers frequently introduce a 1-hour unpaid break that may be used within a defined range of hours in the working day, e.g. between noon and 3 pm.

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Working Time
What is on-duty time?

On-duty time is time in which an employee, on the employer’s instruction, remains ready for work outside his/her normal working hours. An employee may be on duty at the establishment or in any other place indicated by the employer.

On-duty time is not included in working time, unless an employee on duty actually performs work during this time, in which case the employee is entitled to additional compensation for overtime work. Generally, in exchange for on-duty time (except when an employee remains on duty at home), he or she is entitled to a period of time off whose length corresponds to the length of time spent on duty. The employee is eligible for compensation for on-duty time only when the additional time off cannot be granted.

In practice:

The number of on-duty hours is limited, not as a direct result of Labor Code regulations on working time but from the employee’s right to a daily rest. In each 24-hour period, an employee must rest for 11 hours, so his/her on-duty time may not be longer than 5 hours per day (24 hours less 11 hours of rest less 8 hours of work = 5 hours of on-duty time).

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Working Time
What are working days and how are they established?

Working days are all days that are not statutory days off work. In accordance with the Days Off Act, days off include all Sundays and the following holidays:

  • 1 January – New Year’s Day,
  • 6 January – Epiphany,
  • Easter Sunday,
  • Easter Monday,
  • 1 May – Labor Day,
  • 3 May – National Day of 3 May,
  • First day of Pentecost,
  • Corpus Christi,
  • 5 August – Assumption Day,
  • 1 November – All Saints’ Day,
  • 11 November – National Independence Day,
  • 25 December – First day of Christmas,
  • 26 December – Second day of Christmas.
In practice:

The above definition must be also used when calculating time limits expressed in working days. In practice, working days are the days on which the employee renders work, that is from Monday through Friday.

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Working Time
In what form an employee must file a request for a “private leave” with the employer?

In accordance with Article 151.2.1 of the Labor Code, occasional, temporary leave from work (“private leave”) may be granted on a written request of the employee. “Written” means with one’s own signature on the document with the declaration of intent.

In practice:

The written form has only evidentiary significance (the request filed in any other form is valid), but both the employer and the employee should be interested in observing this form. The employer is obligated to keep a working time register (Article 149 of the Labor Code) and it is in the employer’s interest to be able to prove that the time in excess of the employee’s working time limit was not overtime but the time to make up for the private leave. Conversely, the employee needs the employer’s written consent to prove that his/her absence from work while taking the private leave was excused.

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Working Time
What is nighttime work?

Night time includes any period of 8 hours between 9 PM and 7 AM. It must be defined precisely in a collective bargaining arrangement, workplace regulations, an announcement of the employer or an employment contract.

In practice:

If night time is not defined precisely by the employer, it is considered to last 10 hours from 9 PM to 7 AM.

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Working Time
When and for what period must the employer establish work schedules (rosters)?

The 2013 Labor Code amendment introduced a provision regulating the issues of establishing work schedules. In accordance with the amendment, rosters must be made in written or electronic formats for a period of at least one month but they do not need to be established for the entire settlement period. The employer must inform the employee about his/her work schedule at least one week before starting work in the period covered by the schedule.

In practice:

The issue of changes to work schedules is not regulated. Before the 2013 amendment, the State Labor Inspection Office took the position that schedules may be changed in specific situations defined in internal sources of labor law. At present it is unclear how and when employers must inform employees about a change in the schedule, i.e. apply the one-week time limit or establish, in internal sources of law, cases in which the change will be possible on a shorter notice (e.g. an employee’s illness).

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Working Time
What is the maximum length of overtime?

The Labor Code sets out the maximum length of overtime per employee at 150 hours annually but this limit may be reduced or increased in an employment contract, workplace regulations or a collective labor agreement. The weekly working time and overtime may not exceed an average of 48 hours in an adopted settlement period. When agreeing on the length of overtime, the parties may not stipulate more than 416 hours annually (a maximum of 8 hours of overtime in each week multiplied by 52 working weeks).

In practice:

In the case of 20-day holiday leave the maximum limit is 384 hours annually (52 weeks annually minus 4 weeks of holiday leave = 48 weeks x 8 hours per week). The maximum limit for employees entitled to 26-day holiday leave is 376 hours (52 weeks annually minus 5 weeks of holiday leave = 47 weeks x 8 hours per week).

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Working Time
What are the consequences of exceeding the overtime limit per week?

The total weekly working time and overtime may not exceed an average of 48 hours in an adopted settlement period. Employers violating working time regulations (including overtime limits) are liable to pay a fine of PLN 1,000 to 30,000.

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Working Time
When may employers introduce a 12-month settlement period?

The settlement period may be extended to 12 months under all working time systems if it is justified by objective, technical or work organization related reasons. The employer may introduce this change while observing the general rules related to safety and health of employees. The employer must consult an intention to introduce 12-month settlement periods with any trade unions operating in the company or—in their absence—with employee representatives. A copy of an agreement on the extension of the settlement period must be submitted to a competent district labor inspector within five business days of the day of executing the agreement.

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Working Time
How can employers change the established working time system?

Employers may introduce changes to working time systems in a collective labor agreement, workplace regulations or by an announcement. It is not necessary to amend employment contracts unless an individual employment contract guarantees the employee that a specific working time system will be in place.

Changes of the working time system are made in the procedure envisaged for amendments of internal regulations. This means that these amendments must be introduced in the same procedure in which the internal regulations were made.

In practice:

In the case of a collective labor agreement, it will be necessary to sign an additional document with the trade union, and in the case of workplace regulations and the announcement—the changes must be announced two weeks before their coming into force (if there are trade unions in the establishment, an attempt should be made at agreeing with them the changes to the workplace regulations).

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When can a shift working time system be introduced?

Shift work is permitted in any working time system and may be applied to any type of work. The shift working time system is also permitted for work on Sundays and statutory holidays.

In order to introduce a shift working time system effectively, the employer must prepare a schedule and communicate it to employees in advance in the company working time schedule. Such schedule may be a part of a collective labor agreement, workplace regulations or may be announced in an appropriate announcement.

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When can a continuous process working time system be introduced?

Continuous process work may be introduced for work that cannot be interrupted on account of the following:

  • A manufacturing technology (work must be performed without interruption to secure the correct manufacturing process and the correct performance of manufacturing machinery);
  • A requirement to meet public demand without interruption (e.g. supply of electricity, gas, water; or work in a care home).

Due to its specificity, continuous process work is performed in a shift system.
The continuous process work system may not be applied if the machine that is used by an employee in his or her work or that is essential for the operation of an establishment may be switched off or when the employer carries on a non-manufacturing business.

Case law:

Whether a particular work is recognized as a continuous process work is not determined by the degree of utilizing an establishment’s manufacturing capacity or employees’ capacity but [it is determined] by the necessity to perform it considered from a perspective of a correct manufacturing process and correct operation of machinery. Therefore, work at a petrol station may not be considered as a continuous process work (the Supreme Court judgment of 29 September 1975, file ref. I PRN 23/75).

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Where must the working time system and schedule issues be regulated?

Pursuant to Article 150 §1 of the Labor Code, issues related to working time systems and schedules must be regulated in a collective labor agreement or in workplace regulations. If there is no collective labor agreement in place or the employer does not have to have workplace regulations, these issues must be made known to employees in an announcement on working time.

The rules set out in Article 150 §1 of the Labor Code do not apply to the establishment of the shortened working week system and the weekend working time system, which may be introduced only in an employment contract. In addition, under Article 150 §3 of the Labor Code, a working time schedule providing for variable hours for work commencement may be introduced in a collective labor agreement or in an agreement with trade unions operating in the company or, if there are no trade unions, in an agreement with employee representatives.

Case law:

The issues related to the working time system and schedule may be set out in an employment contract or in a separate agreement between the employee and the employer (the Supreme Court Judgment of 17 July 2009, file ref. I B 6/09).

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Working Time
When a break must be introduced?

A 15-minute break may be taken by all employees whose daily working time is at least 6 hours. An employee is entitled to it both in the interrupted working time and when a working time schedule provides for a break to have a meal or attend to personal business that is not included in working time. A break included in working time may be longer than 15 minutes if it is provided so in a collective labor agreement or workplace regulations or an employment contract.

In practice:

In the event of workers employed part-time or in an equivalent working time system it is possible that a break will have to be granted on selected working days only because on other days the working time will not reach six hours.

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Working Time
Who may be covered by the task-based working time system?

The task-based working time system may be introduced for employees with respect to whom it is difficult or impossible to establish precisely their working time by defining an interval. In particular, this system is applied when it is difficult to identify the moment of an employee starting and ending work.

In practice:

The task-based working time system may be introduced when:

  • Work may be performed at any time;
  • Demand for an employee’s work varies;
  • Recording working time is difficult; or
  • An employee performs creative work.
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Working Time
How is work commencement on a Sunday or a holiday established?

The timeframes of a Sunday and a statutory holiday in the Labor Code do not overlap with a calendar day. Generally, a Sunday and a statutory holiday start at 6 AM and last until 6 AM on the next day. An employer may, however, establish a different work starting time on a Sunday and a statutory holiday in workplace regulations or in an announcement if there are fewer than 20 employees.

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Working Time
When can an employee receive a fixed fee for night time work?

Employees are entitled to additional remuneration for each hour of night time work. In the case of employees working during night time permanently outside the establishment, the employer may replace such additional remuneration with a fixed benefit whose amount is determined in a manner corresponding to the planned night time work. The fixed benefit for night time work must be clearly separate from other remuneration elements,

In practice:

The additional remuneration for night time work may not be replaced with the fixed benefit in the case of employees who are instructed to work outside their establishment temporarily.

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Leave
May an employer and an employee make an agreement on the use of paid leave during the term of a subsequent employment contract?

An employer and employee may agree that the employee will use his/her leave during the term of an employment contract made with the same employer directly after the termination or expiration of the current employment contract. Two requirements have to be met in order to make such a transfer of leave possible: (i) the subsequent contract with the same employer has to be made directly after the precedent contract has been terminated or has expired; (ii) the parties have to expressly agree that the paid leave will be used during the term of the subsequent contract. Thus, the employer may not make such a decision unilaterally without the employee’s consent.

In practice:

Article 171 §3 of the Labor Code stipulates expressly that in order to be able to use the above mechanism, the parties have to enter into the agreement before the current employment relationship is terminated. It is stipulated in this provision that the subsequent contract must be made directly after the termination of the preceding contract. The employment relationship itself may begin at a later date, however, in light of the intention of this provision, it should not begin too long after the contract is signed. While entering into the contract, a clause must be included (in the contract or a separate agreement) that stipulates the use of paid leave during the term of the subsequent contract.

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Leave
How can an employer regulate employees’ making up for private leave during working hours?

An employer may not define internal regulations for making up for private leave that are less favorable for employees than the provisions of the Labor Code.

In line with the Labor Code (Article 151 §21), an employer may grant occasional temporary leave only at the written request of an employee. An employee has to obtain the employer’s consent in order to take advantage of the granted leave. Giving consent to such leave is at the employer’s discretion. The employer is entitled to assess the potential threats to its interests associated with the fact that the employee requesting such leave will not perform work during his/her absence, and should take into account the employee’s need to protect his/her own interests. Hence, the employer may require the employee to state the reasons for his/her request.

In practice:

An employer may stipulate in the workplace regulations the conditions of granting leave under Article 151 §21 of the Labor Code. However, the workplace regulations may stipulate more detailed rules than are present Labor Code for the granting and making up for such leave.

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Leave
May an employer obligate an employee to take unused leave?

As a rule, the employer may not effectively obligate an employee to use his/her entire leave entitlement. Some interpretations of law by the State Labor Inspectorate indicate that even in the case of unused leave an employer may not unilaterally require an employee to go on leave.
The Labor Code sets out only one case in which an employer may do so, namely during a termination notice period (Article 1671 of the Labor Code).

However, the State Labor Inspectorate has in recent years adopted a milder approach stating in 2009, in connection with the statement of reasons for a Supreme Court judgment (Case No. I PK 124/05), that an employer may obligate its employees to set the dates when they will take unused leave. Currently: employees must take their unused leave until the end of September of the following year.

In practice:

If an employee refuses to take leave, the employer may not, in general, penalize him/her. It would be difficult for the employer to justify imposing a disciplinary measure on the employee, as his/her refusal to take leave is not in contravention of his/her duties.

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Leave
What is the minimum statutory holiday entitlement?

Employees are entitled to paid annual holiday leave. The length of annual leave depends on the total length of employment with all employers to date.
An employee who starts work for the first time acquires, in the first calendar year of employment, the right to annual leave with the lapse of each calendar month of work in the amount of 1/12 of the length of the full annual leave. The right to subsequent annual leave is acquired by the employee at the beginning of each successive calendar year.

The length of annual leave is:

  • 20 days if the employee has been employed for less than 10 years; and
  • 26 days if the employee has been employed for 10 or more years.

Periods of education as well as the length of service with previous employers, irrespective of any interruption in employment, are included for the purposes of calculation of the total length of employment. The length of annual leave entitlement for an employee working on a part-time basis is calculated in proportion to the employee’s working time amount.

In practice:

An employee under a definite-term contract is entitled to a certain number of days of annual leave in proportion to the number of months of work with the same employer, if the work period is shorter than a full calendar year. Otherwise, the rules relating to employees under indefinite-term contracts will apply.

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Leave
What is the correct way to settle the balance of unused holiday leave?

In accordance with the Labor Code provisions, an employer is obligated to grant an employee leave within the same calendar year in which the employee becomes entitled to the leave. The employee must be granted the unused leave by 30 September of the following year at the latest. The employer must calculate the number of unused days of leave at the end of the year and grant them in the same year, or set the dates of the period of leave in the following year.

In practice:

Under the provisions of labor law, employers who fail to grant the holiday leave that is due to employees are subject to a fine varying between PLN 1,000 and PLN 30,000.

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Leave
Can an employer refuse to grant unpaid leave?

Yes. An employer is not bound by an employee’s request for unpaid leave and does not have to offer any reasons for the refusal. If the employer consents to unpaid leave for a period exceeding three months, the parties may provide for the possibility of the employer requesting the employee’s early return from the leave for valid reasons.

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Leave
When must an employee’s consent to unpaid leave be obtained?

An employee’s consent to the use of unpaid leave must be obtained when the employer enters into an agreement with a third party that the employee will work for the third party during the period of his/her leave. The employee’s consent to such a “change of employer” must be obtained in writing. Once consent is given, he or she will work for the new employer under a separate employment contract for the duration of the leave.

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Leave
How many days of leave are vested in an employee who starts his/her first work?

In accordance with Article 153 of the Labor Code, in the calendar year in which an employee started his/her first job, he/she will acquire a holiday leave entitlement at the end of each month in the amount of 1/12 of the holiday that would accrue to him/her after a full year of work.

Most frequently, an employee who starts his/her job for the first time is not entitled to the longer holiday (26 days). This means that he/she may acquire the holiday entitlement of 1.66 days for each month (1/12 of the shorter holiday entitlement of 20 days). The length of this holiday leave is not rounded up to a full day.

In practice:

A partial day of leave is generally not rounded up, which in practice means that a day of leave is divided into hours. If, therefore, one day of leave equals 8 hours, 1.66 days of leave will equal 13 hours and 20 minutes. The employer may, but does not have to, round up holiday leave to a full day provided that the holiday leave does not exceed 20 days in a calendar year. This method has been accepted by the Chief Labor Inspectorate (GPP-110-4560-41-1/10/PE/RR).

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Leave
Is an employee entitled to additional leave in connection with diploma examinations?

Yes. An employee who improves his/her professional qualifications is entitled to paid study leave of 21 days in the final year of studies to prepare a (bachelor, master or engineer) thesis and prepare for, and take, the diploma examination. The employer may grant the employee study leave for a period longer than 21 days.

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Leave
Can the employer refuse to grant leave?

As a rule, the employer is obligated to grant leave to an employee in the calendar year in which the employee acquired leave entitlement. This does not mean, however, that the employer has to grant leave on dates requested by the employee. The employee must obtain the employer’s consent.

The employer has the right to move the leave dates if this is justified by the employer’s special circumstances, and the employee’s absence would cause serious work disruption. Such special circumstances may include a mechanical breakdown or increased employee absences due to an illness.

The employer may not refuse to grant leave on dates requested by the employee even if the leave request is submitted by a mother or a father who want to take the leave immediately after the end of the (basic or additional) maternity leave or parental leave.

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Leave
Is the employer’s consent to leave on demand necessary?

In accordance with the Labor Code, an employee must notify the employer that he/she wants to take leave on request on the date it starts at the latest and the employer is obligated to grant such leave on the dates indicated by the employee.
It is recognized, however, that the employee must obtain the employer’s consent to such leave. Taking the leave without the employer’s consent may be considered in certain cases as a violation of duties that justifies employment termination.
An example of such violation is a situation where the employee’s absence could cause a suspension of business operations.

In practice:

The time limit for the employee’s notification of his/her intention to take leave on demand is not precisely defined in legal regulations, so it is a common practice to define it with more precision in workplace regulations. For example, it may be stipulated that an employee must submit his/her application for a leave on request by 9:30 AM on the date on which he/she intends to take it.
Provisions of the workplace regulations, however, may not be less advantageous than Labor Code provisions, so it may not be stipulated in the workplace regulations that the employee must submit an application for such leave on the day before.

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Leave
When can the employer require the employee to return from holiday leave?

An employee may be recalled from holiday leave in exceptional circumstances and only if both of the following conditions are met:

  • The employee’s presence at work is indispensable and
  • Circumstances have arisen that were not foreseen at the time the leave began.

The employee must comply with the employer’s instruction to return from holiday leave. The employee’s refusal may be considered as a violation of basic duties.

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Leave
Can an employee transfer his or her holiday leave entitlement acquired while employed with a previous employer?

Yes, if both employers (the previous and the new one) agree to it. To transfer a holiday entitlement, it is necessary for the employee and the employers to enter into a trilateral agreement in which the new employer will make a commitment to grant the employee the holiday leave entitlement that the employee acquired while employed with the previous employer.

Case law:

The Labor Code does not expressly provide for a possibility of transferring a holiday leave entitlement acquired by the employee while employed with a previous employer. Both the legal doctrine and case law (the Supreme Court judgment of 27 November 1980, file ref. I PRN 124/80) permit such a solution because it achieves the basic objective of holiday leave, namely the employee’s use of the leave “in kind” and not in a form of a cash equivalent.

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Parenthood Related Rights
How can an employer verify a female employee’s pregnancy documentation?

The rules for issuing a medical certificate of pregnancy are set out in the regulation of the Minister of Health and Social Welfare on conducting medical examinations of employees, preventive healthcare for employees, and medical reports issued for the purposes set out in the Labor Code. This regulation, however, does not specify any particular form that such a certificate should take or any procedure for its verification.

Since 1 December 2018 physicians issue only electronic medical certificates (on a e-ZLA form) that immediately upon issue are sent to the Social Security Authority (“ZUS”). e-ZLA certificates are provided to employers through their profiles on the ZUS Electronic Services Platform not later than on the day following receipt of the e-ZLA certificates.

An employer may verify an employee’s sick leave by checking if the e-ZLA stating the employee’s temporary incapacity for work (including due to pregnancy) is correct. The employer may ask the Social Security Authority, on-line or in hardcopy on an OL-2 form, to verify if the sick leave was granted correctly.

In practice:

The employer receives a message on the employee’s sick leave automatically, almost immediately upon a physician issuing an e-ZLA certificate, which makes it possible to act fast if there is a suspicion of a misuse of a medical certificate by an employee.

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Parenthood Related Rights
Is an employee on parental leave protected against employment termination?

In accordance with the provisions of Article 177 §1 of the Labor Code, an employer may terminate an employment contract with a female employee who is pregnant or on maternity leave only when there are grounds for contract termination without notice through her fault. Additionally, if the employee is represented by a trade union, the union must consent to the termination.

In practice:

Termination of an employment contract in any other way will be ineffective.

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Parenthood Related Rights
How much holiday leave is an employee entitled to when away from work on parental leave?

The employee is entitled to the standard period of holiday leave for the period of parental leave. Performing work on a part-time basis (e.g. half time) during parental leave does not alter the basis of employment (wymiar etatu; i.e. full-time or part-time work) defined in the employment contract. Thus, a full-time employee on parental leave who combines the leave with part-time work (e.g. half time) for the same employer who granted the parental leave is still a full-time employee.

This follows from the provisions of Article 182(1e) Section 5 of the Labor Code. This provision permits the combination of work with parental leave that is granted for the remaining part of the working hours (even those in which the employee does not work).

In practice:

Leave is granted on days that are working days for the employee, for the number of hours during which the employee would normally perform work on a given day. This means that the number of days of holiday leave to which the employee is entitled will be reduced by the number of hours of planned work that the employee takes off, up to the point where the entire leave is used up.

Example: An employee is entitled to five days of holiday leave (40 hours of leave). She works part-time for four hours a day. Every day she will use up four hours of her holiday leave, which means that in effect she will take 10 days of (partial) holiday (40 hours divided by 4 hours a day = 10 days), while remaining a full-time employee.

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Parenthood Related Rights
What rights does a woman have upon her return to work from maternity leave?

After returning from maternity leave, a female employee must resume work in her previous position or, if this is impossible, in a position equivalent to the one she had before the leave, or another position that corresponds to the employee's professional qualifications with pay no lower than that which the employee had received before going on maternity leave.

Upon returning to work after maternity leave, female employees are entitled to take unpaid child-care leave or request reduced working hours.

In practice:

Moreover, breastfeeding mothers are entitled to additional breaks from work, which are treated as normal working time and whose length depends on the employee’s overall working time and the number of children she is feeding.

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Parenthood Related Rights
Who can take parental leave?

Parental leave due after maternity leave is used up may be taken by both the mother and father of the child:

  • 32 weeks, if one child is born during one birth; and
  • 34 weeks, if more than one child are born during one birth.

Parental leave may be used by both parents at the same time and in such case the total length of the used parental leave may not exceed the above periods.
Parental leave is granted on an employee’s written request submitted at least 21 days before the leave starting date.

In practice:

The employer may not refuse to grant the father such leave unless the request is filed too late.

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Parenthood Related Rights
Is an employee on a childcare leave protected against dismissal?

In accordance with Article 186 §1 of the Labor Code, the employer may not give notice or terminate an employment contract in the period from the day the employee files an application for childcare leave until the day the leave ends. The termination of an employment contract by the employer during this time is admissible only when bankruptcy is announced or the employer is put to liquidation, or when there occur reasons justifying the termination of the employment contract without notice through the employee’s fault (if the employee is represented by a trade union, consent of this organization must be obtained in order to terminate the employee’s contract in this procedure).

In practice:

If the employee files an application for childcare leave after having been notified by the employer of the termination of his/her employment contract, the contract shall terminate on the date stated in the notice.

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Parenthood Related Rights
What conditions must be met by an employee to be able to take childcare leave?

In accordance with Article 186 of the Labor Code, to be able to take childcare leave, an employee must have worked for at least six months (including previous employment periods). Childcare leave may essentially be granted for a period until the child reaches the age of six. Childcare leave may be also granted in the case of an older child (until the age of 18) due to ill health, where a medical certificate is obtained certifying the disability or degree of disability of the child.

In practice:

Each parent is entitled to one month of childcare leave, which means that the other parent may take a maximum of 35 months. The only exception is when the other parent is dead, has no parental authority or was deprived of parental authority or such authority is limited or suspended. In such case the first parent is entitled to childcare leave of 36 months.

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Parenthood Related Rights
Until when can paternal leave be taken?

Paternal leave must end at the latest on the day of the second birthday of the child.

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Parenthood Related Rights
In how many parts must paternal leave be taken?

Paternal leave may be taken all at once or in two parts but neither of them may be shorter than one week.

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Parenthood Related Rights
Can the employer refuse to grant paternal leave to an employee?

Paternal leave is granted on an employee’s written request filed not later than seven days before the start of the leave, and the employer has to grant such request. The employer may, therefore, refuse to grant paternal leave to an employee only when such request is filed later than seven days before it starts. If the employee is late with filing the request, it will be up to the employer’s decision whether the employee will be able to use the leave as planned.

In practice:

The filing of a paternal leave request on time is tantamount to obtaining the employer’s consent to the leave. A refusal to grant paternal leave may be treated as a violation of employee rights and is punishable by a penalty of up to PLN 30,000.

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Parenthood Related Rights
Is a mother entitled to two days of special leave on giving birth?

Under the Regulation of 15 May 1996 on the methods of excusing absences from work and granting leave to employees, employees are entitled to two days of special leave related to a child’s birth. Legal regulations do not indicate which parent is entitled to the leave, but in practice it is taken by fathers only. Mothers start maternity leave on the date of delivery, which in practice makes it impossible to use the two days of special leave after the child’s birth.

In practice:

According to the Ministry for Labor, Family and Social Policy, the two days of special leave must be used within a short time after the child’s birth, which means that they may not be used by the mother after the end of the maternity or paternity leave.

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Personal Data Protection
What are the laws regarding the processing of the personal data of job candidates?

Article 22(1) § 1 of the Labor Code specifies a detailed and exclusive list of personal data that may be requested of employees and job candidates. Provisions of Article 22(1a) of the Labor Code permit the processing of an employee’s personal data on the basis of his/her consent, but in the case of special category of data, the initiative to provide such data must come from the employee.

In cases not regulated in the Labor Code, the provisions of the Personal Data Protection Act of 10 May 2018 and the provisions of the GDPR (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) shall apply.

These legal provisions define basic terms, detail the obligations of the personal data controller and indicate the scope and nature of the liability incurred for violating these provisions.

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Personal Data Protection
Can employers use detective services to audit employees?

Polish law does not regulate this matter.

Oftentimes, information provided by detectives proves crucial for employers and constitutes grounds for the termination of employment in disciplinary proceedings. It is important to note that if an investigator’s conduct is diligent, ethical and respects human freedoms and rights (Article 6 of the Detective Services Act), his or her deliverables may be used in court as evidence in the event that an employee challenges the termination of his/her employment.

One should bear in mind provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR), which provide for the principle of data minimization. This means that an employer may process only such personal data that is necessary to achieve the purposes for which such data is processed.

In practice:

In practice: A labor court may question the employer’s methods if they prove to be out of proportion to the suspicions against the employee. Example: an employer hires a detective to monitor an employee’s use of sick leave and the detective taps the employee’s telephone to invigilate him/her. The court would almost certainly consider this approach a violation of the employee’s personal rights because it constitutes an interference with the employee’s private life disproportionate to the severity of the suspicions against him/her.

81
Personal Data Protection
Is a job candidate or employee’s consent sufficient to process personal data other than that specified by the Labor Code?

In accordance with Article 221a of the Labor Code, consent given by a job applicant or an employee may be grounds for the employer to process personal data other than that mentioned in Article 221 § 1 and § 3, which contains a detailed and closed list of personal data that the employer may request from the job candidate or the employee. This relates to any personal data provided by the job applicant or the employee on the employer’s request or any personal data provided to the employer on the initiative of the job applicant or the employee.

There is an exception to this rule, namely that the employer may not, even with the consent of the job candidate or the employee, process personal data relating to convictions and infractions of law.

In practice:

Consent of a job candidate or an employee must be express and for evidentiary purposes granted in writing and retained in the employee’s personnel files.

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Personal Data Protection
What sanctions may be imposed on employers for the unlawful processing of employees’ personal data?

If an applicant is not hired because he refused to give information that the employer was not authorized to request, he or she may claim damages for discrimination amounting to at least the monthly minimum salary (PLN 2,250 in 2019).

If an employer violates personal data protection regulations, an employee or applicant may also contact the State Labor Inspection Office that may carry out an inspection to verify if the employer complies with personal data protection rules and may impose a fine of up to PLN 30,000.

If an employer violates personal data protection regulations, an employee or applicant may also file a complaint with the President of the Personal Data Protection Office (PDPO). Depending on the type of the breach of the personal data protection law, the PDPO may impose, on an entity obligated to comply with the GDPR regulations, an administrative fine of up to EUR 10,000,000, and in the case of entrepreneurs – a fine of up to 2% of annual global turnover in the preceding financial year, whichever is higher, or up to EUR 20,000,000 and in the case of entrepreneurs – a fine of up to 4% of annual global turnover in the preceding financial year, whichever is higher.

The PDPO may also initiate disciplinary proceedings against the employer to whom the complaint relates or notify an appropriate law enforcement agency of his/her suspicion that an offence has been committed. Pursuant to the Personal Data Protection Act, anyone who processes personal data if its processing is not permitted, or if he/she is not authorized to process such data, is subject to a fine, limitation of liberty or imprisonment of up to two years.

In practice:

If the employer asks for information that he or she cannot lawfully request, the candidate may provide false information without any consequences.

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Personal Data Protection
Does the employer need the employee’s consent to process personal data connected with the processing of the employment contract?

No. In accordance with the Labor Code, the employee’s personal data that the employer has the right to process for employment purposes are expressly listed in Article 22 (1) and this is the sufficient legal basis for the lawful processing of such data.

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Personal Data Protection
Can the employer provide information about an employee’s salary over the telephone to a bank?

No. This information is the employee’s personal data and must be guarded by the employer against access of unauthorized persons. Provision of information on an employee’s salary over the telephone will be considered contrary to personal data protection regulations even if the employee grants prior consent. The employer is unable to confirm the identity of the person requesting this information. Any information about the employee’s salary may be provided to the bank only after the bank files a written and motivated request and after the employee consents to it.

In practice:

Provision of information on an employee’s salary over the telephone will be considered contrary to the personal data protection regulations even if an employee grants his/her prior consent to the employer confirming his or her data over the telephone, which is commonly practiced by banks when entering into loan agreements.

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Personal Data Protection
Can the employer make a copy of an employee’s identity card?

No. The Labor Code provides a closed catalogue of personal data that the employer may process. The copying of an identity card would result in the employer having the data which it may not process. In addition, an identity card is not a document whose copy may be stored in an employee’s personnel file, listed in the Regulation of the Minister of Labor and Social Policy of 28 May 1996 regarding the scope and manner of keeping employment-related documentation.

The only exception is a situation when the employer hires a person holding a citizenship other than Polish, EU or Swiss. In such case, the employer must request the person to present, before starting work, a valid document that entitles him/her to stay in Poland, and retain a copy of such document throughout the employment period. This results from Articles 2 and 3 of the Act on the Consequences of Employing Foreigners that Unlawfully Stay within the Territory of the Republic of Poland of 15 June 2012.

In practice:

To obtain the PESEL number of an employee, the employer must use a personal questionnaire in which the employee will state his/her PESEL number. The employer may use a template of the questionnaire that is attached to the Regulation of 28 May 1996.

82
Employment Contract Termination
What are the consequences of giving a pregnant employee a notice of termination of her employment?

In general an employer may not give a notice of termination or terminate an employment contract while an employee is pregnant, except in the case of so-called disciplinary dismissal. According to the Supreme Court, it is not relevant when the employer learns about the pregnancy: the objective circumstances at the moment the notice is given or the employment contract is terminated are the only decisive factor.

However, pursuant to Article 185 §1 of the Labor Code, the pregnancy should be confirmed by a medical certificate, and the employee may exercise her right to protection against dismissal only after presenting such a certificate. The employee is protected from the start of her pregnancy.

In practice:

If an employer gives a notice of termination of employment and it later turns out that the employee was pregnant at the time the notice was given, she must be reinstated.

82
Employment Contract Termination
What is the legal status of an employment contract termination notice that lacks a signature?

The notice without a signature, though it does not meet formal requirements, is effective and terminates the employment contract. An employment termination notice must be given in writing, but failure to do so will not invalidate this statement.

Unless the employer proceeds to give the termination notice in the proper written form, however, the employer is in contravention of the provisions related to termination of employment contracts. In such a case, the employee has a justified claim to have the termination notice declared ineffective, to be reinstated or to be awarded damages.

Case law:

The Supreme Court explained that a declaration of intent may be written down by the person making the declaration or by any other person. The declaration may be written down by hand or typewritten; a computer printout is also acceptable. The only element of the document that has to be written by hand is the signature under the declaration of intent.

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Employment Contract Termination
How should an indefinite- or definite-term employment contract be terminated?

Either party may terminate an indefinite-term contract and a definite-term contract (but only if it is executed after 22 February 2016) with notice. The length of the notice period is dependent on the seniority of an employee with a given employer, i.e.

  • Two weeks if employed for less than six months;
  • One month if employed for at least six months; and
  • Three months if employed for at least three years.

The notice of termination of the employment contract must be made in writing. In addition, an employer who gives such a notice must inform the employee about his/her right to appeal to a competent labor court. The employer is also obligated to consult with any trade union operating in the company as regards its intention to terminate the employment contract.

In addition, while giving a notice of termination of an indefinite-term contract, the employer must indicate the reason for the termination. This obligation does not apply in the case of giving a notice of termination of definite-term contracts.

In practice:

If parties wish to change the above notice periods, they must enter into an agreement on the matter. This option enables the parties to settle any mutual claims and regulate their behavior after the termination, and is therefore usually the best way to break off employment.

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Employment Contract Termination
How long is the notice period for a definite-term contract that was executed before 22 February 2016?

The new provisions of the Labor Code that came into force on 22 February 2016 apply not only to contracts executed after this date but also to contracts executed before this date that stipulated under the previous regulations that it was possible to terminate such contracts with a 2 weeks’ notice. If the employer intends to terminate them, the new, longer, notice periods must be applied that are similar to the notice periods applied while terminating indefinite-term contracts.

Of note is that in accordance with the amendment, while determining the length of the notice periods of contracts for which notices of termination are to be given after 22 February 2016, no account is taken of periods of employment with the employer that took place before the date of the Act coming into force.

The new regulations and, consequently, the new termination notice periods will not apply to the existing contracts that were executed for less than 6 months or for a longer period but in which parties did not provide for an option to terminate.

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Employment Contract Termination
How to calculate—for the purposes of calculating the notice period—the length of service of persons employed under definite-term employment contracts before 22 February 2016?

In accordance with Article 16 of the Act Amending the Civil Code and Certain Other Acts of 25 June 2015, in calculating the length of notice periods under contracts with respect to which notices of termination were to be given after 22 February 2016, no periods of employment with a given employer before the Act came into force (22 February 2016) are taken into account. This means that irrespective of an earlier length of service, for the purposes of calculating the notice period, employment will be counted from that date, and for the first six months the employee will be entitled to the same notice period as before, i.e. 2 weeks. Only then will the notice period gradually extend.

82
Employment Contract Termination
How long is the contract termination notice period?

The notice period depends on the length of service in a given company and in the case of indefinite- and definite-term contracts is as follows:

  • Two weeks if the employee's length of service is less than six months;
  • One month if the length of service is at least six months; and
  • Three months if it is at least three years.

The period of notice for a contract of employment for a trial period is different and is:

  • Three working days if the trial period does not exceed two weeks;
  • One week if the trial period exceeds two weeks; and
  • Two weeks if the trial period exceeds three months.
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Employment Contract Termination
Does the employer have any additional obligations related to planned group layoffs?

Group layoffs are regulated by the Act on the Specific Principles of Terminating Employment for Reasons not Attributable to Employees.

The Act applies to employers who employ at least 20 employees and plan to terminate, for business-related reasons, within 30 days, the employment contracts (even with mutual consent), of at least:

  • 10 employees when fewer than 100 workers are employed,
  • 10% of employees when at least 100 but fewer than 300 workers are employed,
  • 30 employees, when at least 300 employees are employed.

When carrying out group layoffs, employers are additionally obligated to:

  • Consult with trade unions or other employee representatives regarding their layoff plans,
  • Provide trade unions with information as to the reasons for layoffs, the number and positions of the employees to be laid off, the planned date of the layoffs, the selection criteria for the layoffs, and the order in which the layoffs will be carried out,
  • Provide the same information to the relevant district employment agency,
  • Grant severance pay amounting to:
    • The monthly salary, if the employee has been employed for less than two years,
    • Two times the monthly salary, if the employee has been employed for two to eight years,
    • Three times the monthly salary, if the employee has been employed for more than eight years.
In practice:

Following consultations, the employer and the trade unions can enter into an agreement regarding the terms and conditions of group layoffs, which covers all laid-off workers collectively. Otherwise, the employer must inform the trade unions in writing about each planned dismissal.

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Employment Contract Termination
What are the grounds on which an employer can dismiss without notice or for cause?

The employer may terminate an employment contract without notice through the fault of the employee in the following cases:

  • A serious breach of basic duties by the employee,
  • A criminal offence committed by the employee during his/her employment that prevents his/her further employment in the current position, if the offence is obvious or declared by court in a final and non-appealable judgment,
  • Loss of a license necessary to perform work in the current position through the fault of the employee.

The employment contract cannot be terminated for the above reasons after more than one month from the date when the employer is notified about the circumstances that constitute grounds for termination.

The employer may also terminate an employment contract without notice:

  • If the employee’s incapacity for work due to an illness lasts:
    • Longer than three months: if the employee’s length of service with that employer is less than six months,
    • Longer than the total period for which the employee has received remuneration, sickness benefits, and the first three months of rehabilitation benefit: if the employee’s length of service with that employer is at least six months, or if the employee’s incapacity for work is caused by an accident at work or an occupational disease.
  • If the employee’s justified absence from work arises for reasons other than those referred to above, after one month of such absence.
In practice:

To terminate an employment contract without notice, the employer is legally obliged to give the employee a written statement containing, in particular, the reasons for the dismissal and information about the possibility of appealing to a labor court. The employer is not obliged to give the employee a hearing beforehand.

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Employment Contract Termination
When must employers submit their intention to dismiss an employee to consultation?

If a trade union operates in the establishment, an employer who intends to terminate an indefinite-term employment contract with an employee must first notify the trade union about his/her intention to do so. If the employer is not certain as to whether the employee is represented by a trade union, or which trade union he/she is represented by (if a number of trade unions exist in the establishment), the employer must consult with all of the unions in the establishment. The enquiry should state the reason for the intended termination. Trade unions have five days to respond to the consultation request.

The employer does not have to submit the intention to dismiss an employee to consultation when dealing with contracts other than an indefinite term contract, i.e.:

  • Definite-term contracts; and
  • Trial period contracts.
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Employment Contract Termination
In what cases are employees entitled to time off for job search?

An employee who receives notice of the termination of his/her employment contract and is entitled to a notice period of at least two weeks may, over the course of the notice period, be granted leave to look for a new job while retaining the right to remuneration.

The length of the leave depends on the length of the notice period and comprises:

  • Two working days in the case of a notice period lasting between two weeks and one month, and
  • Three working days in the case of a notice period of up to three months.
In practice:

Leave to look for a new job can be granted only to those employees whose employment contract is being terminated by the employer. This rule does not apply if the employment contract is terminated by the employee, unless an agreement permitting paid time off for job search is reached with the employer.

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Employment Contract Termination
When can a trade union representative be dismissed?

Almost never. Labor law protects trade union representatives against dismissal. Pursuant to Article 32 of the Trade Union Act, employers may not, without the consent of the board of the company’s trade union, give notice or terminate an employment relationship with an employee whose name is indicated as a representative in a resolution of the trade union board or any other employee authorized to represent a trade union.

In line with Supreme Court judgments, protected trade union representatives may be dismissed if it would be against the law to retain them in the establishment. If the protected trade union representative’s behavior is “drastically reprehensible” or violates the rights of others, including threats to their lives or health, the employee is not protected against dismissal. For example, a reason justifying termination of the employment contract of a trade union representative might be work under the influence of alcohol.

In practice:

If a trade union registers more persons on a list of protected union representatives than is permitted under statutory limits (Article 32 §6 of the Trade Union Act), the union’s action will be treated as though it had never registered any protected employees. The listed employees will not be protected against dismissal until the trade union registers the correct number of protected representatives.

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Employment Contract Termination
Can an employment contract be terminated under the disciplinary procedure in the course of the termination notice period?

Yes. If during the notice period the employer decides to terminate an employment contract under the disciplinary procedure, the employer can do so throughout the entire notice period, because the contract is binding on the parties until it is terminated. Employment contracts may also be terminated under the disciplinary procedure while employees are on holiday leave during the notice period, if during this time the employer becomes aware of any circumstance that justifies termination under this procedure.

In practice:

If an employee is dismissed under the disciplinary procedure during the notice period in violation of law, the employee may only demand, in a labor court, compensation equal to his/her remuneration for the period left until the end of the notice period. If, however, the employee challenges both the disciplinary dismissal and the earlier notice of termination of his/her employment contract, he/she will be able to demand reinstatement or compensation not lower than the remuneration due for the entire notice period.

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Employment Contract Termination
How is a notice period counted?

Pursuant to Article 30 §2(1) of the Labor Code, if the notice period of an employment contract is given in weeks, the period ends on a Saturday after the specified number of full weeks have elapsed. If the notice period is given in months, the period ends on the last day of the month, after the specified number of full calendar months has elapsed. The notice period will start, however, at the moment of the giving of notice of termination. This means that the notice period will often be longer than the durations specified in the Labor Code regulations would indicate.

For example, if the notice period is 2 weeks and the notice is given on Tuesday, the notice period starts on Tuesday and will end on a Saturday after two full weeks have elapsed, i.e. after 19 days. With monthly notice periods, if a declaration terminating an employment contract is filed in the middle of a given month, the notice period will start as soon as the declaration is filed, and will last until the specified number of full calendar months has elapsed (in the case of a one-month notice period, if the declaration is filed in the middle of the month the notice period will last until the final day of the next month).

If a notice period is expressed in days, it must be calculated in accordance with the general limits resulting from the provisions of the Civil Code. This means that the notice period ends with the lapse of the last day of the period, with the day on which the notice was given not being taken into account. For example, if notice for the termination of a trial period contract providing for 3 days’ notice is given on Monday, the contract will terminate at the end of the day on Thursday.

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Employment Contract Termination
Who can sign a notice terminating an employment contract on behalf of the employer?

The Labor Code provides that acts related to labor law may be executed for the employer by the employer’s governing body; for example, by the board of directors in a company or any other person, e.g. an attorney-in-fact empowered to do so. In practice, the employer gives general authorization to a person to execute acts related to labor law. The scope of the authorization, however, may be narrowed down to establishing and terminating employment relationships only.

Labor law does not regulate how the person who is to perform legal acts for the employer is appointed. The nature and scope of the authorization may be stipulated, for example, in internal labor law regulations or directly in an employment contract.

In practice:

If no person authorized to perform acts for the employer is appointed in internal regulations or in an employment contract, it is recommended to include the appropriate authorization in a separate document in which the name of the person being granted authorization is stated.

Case law:

The Supreme Court has ruled that an external entity, e.g. an external advisor company, may be appointed as the person performing acts for the employer within the meaning of labor law regulations. Such a company may perform some or all of the acts that the employer requires on the employer’s behalf.

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Employment Contract Termination
Can the employer terminate a trial-period employment contract?

Yes. A trial-period contract may be terminated both by the employer and the employee. The notice period depends on the term for which the contract was executed. The notice period of a trial-period employment contract is:

  • Three business days, if the trial period does not exceed 2 weeks;
  • One week, if the trial period is longer than 2 weeks;
  • Two weeks, if the trial period is 3 months.
In practice:

A notice of termination of a trial-period employment contract must be filed by the employer in writing with a note on the employee’s right to file an appeal against the notice with a labor court.

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Employment Contract Termination
Does the lack of a note about the procedure of appeal to a labor court affect the effectiveness of the employer’s statement about the termination of an employment contract?

No. The lack of the note does not affect the effectiveness of the statement itself, which means that the contract will terminate as stated.

In practice:

In the case of a dispute, the lack of the note may be a circumstance to restore the employee’s time limit to file an appeal with the labor court. This time limit may be restored if the employee missed it without his/her fault; in practice, the lack of the note about a possibility of the appeal is often considered as a valid reason excluding the employee’s fault.

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Employment Contract Termination
Can an employment contract termination agreement be executed during the notice period?

Yes, as long as the employment contract is not terminated, an agreement that will change the contract termination procedure may be executed. To do so, a statement withdrawing the notice of termination of the employment contract must be made, to which the consent of the other party is necessary. Both the withdrawal of the previous statement and the consent may be expressed impliedly. This means that it may be implied on the basis of the signed agreement that both parties have consented to the change of the contract termination procedure.

In practice:

A distinction must be made between a change of the contract termination procedure and the shortening of the notice period resulting from Article 36 §6 of the Labor Code. In the latter case, both parties may agree on a change of the date of the definitive contract termination but the contract termination procedure will remain the same.

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Employment Contract Termination
In what circumstances an employment contract may be terminated with an employee despite his/her excused absence?

Article 41 of the Labor Code prohibits termination of an employment contract during the employee’s holiday leave and any other excused absence, such as sick leave. In accordance with a Supreme Court ruling, if during the leave the employee arrives at work and performs his/her duties, the employer has the right to presume that he/she is capable of working, and therefore the employer may give an effective notice of termination of his/her employment contract. This will not apply if the employee arrives at work exclusively to produce a doctor’s leave certificate; in this case, the notice given to the employee will not be effective.

A disciplinary dismissal makes it possible to terminate employment during the employee’s excused absence. The dismissal in this procedure must be justified by specific causes, e.g. a serious violation of duties.

In certain situations, the employer may terminate employment contracts without notice without the employee’s fault:

  • If the employee’s incapacity for work as a result of an illness lasts:
    • Longer than three months – when the employee has been employed with the employer for a period shorter than six months;
    • Longer than the total period of collecting sickness pay and sickness benefit and collecting a rehabilitation benefit for the first three months, if the employee has been employed with the employer for at least six months or if the incapacity was caused by an accident at work or an occupational disease;
  • In the case of justified absence from work for other reasons lasting longer than one month.
In practice:

The total period of collecting the remuneration for work and the benefit mentioned above is 182 days (or 270 days in the case of tuberculosis or a disease during pregnancy). If the employee’s incapacity for work lasts longer and further treatment or rehabilitation show that the employee may regain the capacity for work, the protection period is extended by a maximum of further three months of the rehabilitation benefit.

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Employment Contract Termination
Can the employer extend the statutory period of notice of an employment contract without the employee’s consent?

Yes, if it is not less advantageous for the employee than the standards resulting from the Labor Code. The advantages of such extension is analyzed as at the date of the employment contract by reference to the present situation on the labor market and contractual provisions.

In practice:

In its numerous rulings the Supreme Court stated that longer notice periods are generally advantageous to employees.

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Employment Contract Termination
Can the employer unilaterally release an employee from the obligation to work during a notice period?

Yes. Before the amendment of the Labor Code, an employee’s consent was necessary to release him/her from the obligation to work during a notice period because it was held that work was not only an obligation but also a right.

The Labor Code amendment that came into force on 22 February 2016 introduced Article 361 in accordance with which the employer has the right unilaterally to release the employee from the obligation to work until the end of the notice period.

During the period of release from work the employee retains the right to remuneration and the employment relationship terminates on the last day of the notice period.

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Employment Contract Termination
Does the presentation of a doctor’s leave certificate prevent the employer from making a statement on termination of an employment contract?

The employer may not give a notice of termination of an employment contract during the employee’s leave and during any other excused absence of an employee from work, if the period entitling the employer to give a notice of termination of an employment contract without notice has not passed yet. Thus, legal provisions prohibit termination of an employment contract during the employee’s absence from work, but not during the time when there is a reason justifying such absence caused, for example, by an incapacity for work due to an illness.

Protection of absent employees covers a prohibition of giving a notice of termination of employment contracts during employees’ absence at work only. Consequently, if the employer terminates an employment contract and later (even on the same day) the employee produces a doctor’s leave certificate, the termination will be valid and the contract will terminate.

In practice:

When a doctor’s leave certificate is issued after the employee finishes work on a given day, the period protecting him/her against employment contract termination will start on the next calendar day.

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Employment Contract Termination
When is a statement on employment contract termination sent to an absent employee considered delivered?

The termination of an employment contract without notice occurs when the employer’s statement of termination reaches the employee. This was indicated by the Supreme Court in its judgment of 16 March 1995 (I PRN 2/95) stating that the employer’s statement terminating the employment contract without notice is given to the employee when it reaches the employee in such a way that he/she is able to make him/herself familiar with its content even if he/she does not do so. In accordance with Article 61 of the Civil Code, which by virtue of Article 300 of the Labor Code also applies to employment relationships, the giving of a statement of intent occurs when it reaches the addressee in a way enabling the addressee to make him/herself familiar with its content.

In order to deliver to an absent employee a statement on the termination of an employment contract, the employer may send it by post. The statement will be deemed made when it is delivered to the employee. If the employee does not collect the postal delivery within 14 days from the first postal advice note, the effect of delivery will take place after the lapse of this time limit. The employee may defend him/herself by claiming that the failure to collect the letter was not caused by his/her fault because he/she, for example, was at that time in hospital. To challenge the delivery, the employee will have to prove such circumstances.

In practice:

Any such correspondence should be sent with return receipt requested. If a contract termination statement is sent to the employee by post, the date on which the letter is delivered will be the date of termination of the employment contract that must be stated in the employment certificate.

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Employment Contract Termination
Can a term contract be terminated?

A definite-term employment contract terminates not only upon the end of the period for which it is executed but may also be terminated by either party with notice. The notice period is similar as in the case of an indefinite-term employment contract and is:

  • Two weeks, if the employee has been employed for a period of up to six months;
  • One month, if the employee has been employed for at least six months; and
  • Three months, if the employee has been employed for at least three years.
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Employment Contract Termination
Can an employee appeal against a notice of change in the terms of work and pay even though he/she has not refused to accept the new terms?

Each employee has the right to file an appeal to a labor court against a notice of change in the terms of employment. It is irrelevant whether the employee has accepted the new terms of work and pay proposed by the employer.

Of note is that depending on the moment of filing the appeal the employee may have different claims:

  • To hold the notice of change ineffective if it was given during the notice period, or
  • To be reinstated on the previous terms after the end of the notice period.

Filing an appeal against the notice of change in the terms of work and pay is not equivalent to refusal to accept the proposed terms. This also applies to a situation when the employee notifies his/her employer that he/she has filed a lawsuit. The employee’s statement with refusal to accept the new terms must be given to the employer.

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Employment Contract Termination
What effect may an employer’s appeal against a notice of change in the terms of work and pay have if the new terms are not accepted

If an employee files an appeal with a labor court against the employer’s notice of change in the terms of work and pay that the employee does not accept, the labor court may, depending on the moment the appeal is filed:

  • Hold the notice change ineffective (if the appeal is filed during the notice period), or
  • Reinstate the employee to work on the previous terms (if the appeal is filed after the end of the notice period).

The notice of change must contain information stating that if the employee before the end of half the notice period does not make a statement refusing to accept the new terms of employment, he/she is deemed to have accepted these new terms. If there is no such information, the employee will be able to make such a statement until the end of the notice period.

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Court Disputes with Employees
What is the correct way to specify court jurisdiction in a contract termination notice?

A statement terminating an employment contract with or without notice must contain information about the employee’s right to appeal to a labor court (Article 30 §5 of the Labor Code). According to a schedule to the Regulation of the Minister for Labor and Social Policy regarding the keeping of employment-related documentation, the employer must not only inform the employee about his/her right to appeal to a labor court, but also provide the address of the court.

In accordance with Article 461 §1 of the Civil Procedure Code, action in cases related to labor law may be brought:

  • Before a court of general jurisdiction for the place of residence of the defendant,
  • Before a court in whose district the work at issue is, was or was to be done, or
  • Before a court in whose district the workplace is located.
In practice:

The employee is free to choose the court to which he or she will appeal. He/she is not bound to resort to the court mentioned in the employer’s notice and may file a lawsuit with any of the above courts.

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Court Disputes with Employees
When do claims under the employment relationship become time-barred?

In the majority of labor law cases, the time bar period for claims is three years. This period starts when the claim becomes enforceable, i.e. on the day on which the employee may require that an obligation be met and the employer is obligated to meet it. For example, if the employee receives his/her salary on the tenth day of each month and has not received his/her salary in April 2015, he/she has the right to file a lawsuit for payment before 10 April 2018.

The course of the time-bar period is interrupted by any action that is taken before a competent authority (e.g. the filing of a lawsuit with a court) and by the admission of a claim. After each such interruption, the time-bar period starts from the beginning.

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Court Disputes with Employees
How many days does an employee have to appeal against a notice of termination, and how many days to appeal against a dismissal without notice?

If the employee believes that the notice of termination is unjustified or violates the contract termination provisions, he/she may file an appeal with the labor court. In the case of a notice of termination of an employment contract, the time limit to file an appeal is 21 days from delivery, and in the case of termination without notice—21 days.

The employer has an obligation to inform the employee that he/she can file an appeal with the labor court. The court and time limit in which the appeal can be made must be included in the contract termination document or in the statement of contract termination without notice.

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Court Disputes with Employees
What compensation and damages may an employee demand for mobbing?

An employee who suffered health consequences due to mobbing may claim cash compensation from his/her employer for this harm. An employee may also claim compensation for being mobbed and if due to mobbing he/she terminates his/her employment contract. This stipulation is contained in the amended Article 94 (3) §4 of the Labor Code.

The amount of compensation depends on the decision of the Labor Court. Judicial decisions issued in reliance on the Civil Code provisions regarding compensation for damage (Articles 445 and 448 of the Civil Code) offer guidance in this respect. Therefore, the extent of the harm suffered by the employee (e.g. irreversibility of the consequences of mobbing, degree of physical and mental suffering, and duration) will decide on the amount of the cash compensation.

The maximum amount of damages for suffering mobbing or terminating an employment contract for this reason is not specified. The Labor Code only indicates its lowest permissible value (the minimum monthly salary of PLN 2,250 in 2019).

Case law:

The Supreme Court indicated that the employee may also file claims against the employer (or directly against the mobber) based directly on civil law regulations, which means that additional damages may be obtained.

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Court Disputes with Employees
What is the maximum amount of damages that an employee may demand for discrimination and unequal treatment?

In accordance with Article 18 (3d) of the Labor Code, the employee may claim damages for discrimination and unequal treatment that may not be lower than the minimum monthly salary (PLN 2,250 in 2019).

Case law:

In accordance with a view adopted in judicial decisions, damages for discrimination should compensate the damage suffered by the employee, both in terms of property damage, e.g. lost salary, and non-property damage, e.g. health impairment (Supreme Court judgment of 7 January 2009, file ref. III PK 43/08).

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Court Disputes with Employees
Can a person employed otherwise than under an employment contract claim damages for unequal treatment?

Yes. In 2010 the Act Implementing Certain EU Regulations Related to Equal Treatment (commonly called the “Antidiscrimination Act”) came into force. It defines areas and methods of counteracting violations of equal treatment on account of gender, race, ethnic origin, nationality, religion, worldview, disability, age or sexual orientation.

Pursuant to Article 13 of the Antidiscrimination Act, anyone whose right to equal treatment has been violated may seek damages from the perpetrator.

The Antidiscrimination Act may be used by persons who provide work under a mandate contract, specific-work contract, a cooperation contract, management contract, etc. These persons may claim damages by filing a lawsuit in a civil court instead of a labor court.

In practice:

The Antidiscrimination Act has been seldom applied. According to research conducted by civic organizations, between 1 January 2011 and March 2014, there were only five proceedings conducted on the basis of the provisions of the Act before common courts (there are 287 common courts altogether). The Act and its practical implications are widely criticized. Therefore, the regulations connected with the problem of the discrimination of persons employed otherwise than under employment contracts may soon be amended.

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Court Disputes with Employees
What claims cannot be waived by employees?

In accordance with the Labor Code provisions, employees cannot waive the right to remuneration or the right to holiday leave. Remuneration includes not only a base salary, but also accompanying benefits (e.g. function benefit, seniority benefit) and other benefits, e.g. long service awards, severance pay or unused leave cash equivalent. The prohibition covers a total and partial waiver of rights to remuneration. It is also impossible to transfer the right to remuneration or the right to holiday leave onto a third party.

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Court Disputes with Employees
When can an employee demand restoration of the time limit to file an appeal against employment contract termination?

Only in the case when the employee fails to file an appeal without his/her fault. To restore the time limit, the employee must file an application with the labor court within 7 days from the cessation of the reason for missing the time limit. The employee must substantiate circumstances justifying the restoration of the time limit and concurrently file the appeal.

In practice:

The lack of a mandatory note about the right to file an appeal in the employer’s statement terminating an employment contract may be the reason justifying the restoration of the time limit to file the appeal by the employee.

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Court Disputes with Employees
What may an employee demand if an employer unlawfully terminates an employment contract with or without notice?

If an employer terminates an employment contract unreasonably or unlawfully, an employee will be first entitled to demand that the termination notice be declared ineffective and such demand may be pursued only during the notice period. If the contract has terminated, the employee may demand reinstatement on the previous terms or payment of damages. The choice of claim is for the employee to make, but when reinstatement is impossible or pointless, the court may award damages instead of reinstatement.

Likewise, if an employment contract is found to have been defectively terminated without notice by the employer, the employee may demand either reinstatement or payment of damages.

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Employee Representatives
Are employers required to set up works councils in Poland?

No. The Act on Informing and Consulting Employees states that employers with 50 or more workers must only inform them of their right to set up a works council. The works council is elected by employees and its membership depends on the size of the company (3, 5 or 7 members, unless the employer and its employees reach an agreement that states otherwise).

If a works council is set up, the employer is obligated to provide the works council with information about operations and economic situation of the company and any expected changes in this respect, as well as any actions that could lead to significant changes in work organization or employment levels (planned layoffs, changes in work organization or employment policies, etc.).

A work council is entitled to present its non-binding opinions on a number of issues of relevance to the employer’s operations.

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Employee Representatives
What are the consulting obligations of an employer related to the dismissal of an employee who is represented by a trade union?

Article 38 §1 of the Labor Code requires an employer who intends to give a notice of termination of indefinite-term employment to notify the trade union representing the employee in question about this intention and give the reason for the termination. If this obligation is not met, the termination notice will be invalid.

In accordance with the provisions of Article 30 §21 of the Trade Unions Act of 23 May 1991, in employment-related cases where the provisions of labor law obligate the employer to co-operate with a trade union operating in the company, the employer is also obligated to ask the trade union for information as to whether the employee in question is under its protection. Failure to provide such information within five days of the request releases the employer from the obligation to co-operate with this trade union with respect to these employees.

In order to comply with the above obligations, each time an employer plans to terminate an indefinite-term employment contract must (i) notify the trade unions operating within the company of this intention in writing, and at the same time must (ii) ask for information as to whether a given employee is protected by any of the trade unions.

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Employee Representatives
In what situations must employers consult employee representatives elected ad hoc?

Polish labor law provides for a number of situations in which the employer is obligated to consult or agree with employee representatives (elected in accordance with the procedures adopted by the employer).

Cases in which the employer is obligated to consult include:

  • Entry into an agreement on the partial or total suspension of the application of labor law provisions setting out the rights and duties of the parties to an employment relationship (Article 9(1) §2 of the Labor Code);
  • Introduction of, or changes in the terms of, telework (Article 67(6) §4 of the Labor Code);
  • Entry into an agreement introducing an interrupted working time system (Article 139 §3 of the Labor Code);
  • Entry into an agreement introducing extended settlement periods or variable working time (Article 150 §3 of the Labor Code);
  • Enumeration of types of work that are particularly dangerous or that involve major physical or mental exertion for nighttime employees (Article 151(7) §4 of the Labor Code);
  • All actions connected with occupational health and safety, in particular those listed in Article 237(11a) §1 of the Labor Code; or
  • Intention to carry out a collective redundancy (Article 2.7 of the Collective Redundancy Act).
In practice:

The consequences of a lack of consultation or agreement with employee representatives may vary depending on the issue. For example, according to some views expressed in labor law doctrine, a lack of consultation with employee representatives when a longer notice period is being introduced results in the invalidity of the notice period extension.

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Employee Representatives
What are the consequences of a trade union failing to inform the employer about the number of its members?

Article 25(1).2 of the Trade Union Act imposes a duty on a trade union to inform the employer about the number of its members. The information must be provided every six months, as at 30 June and as at 31 December by the tenth day of the month following such period. If a trade union is formed in the course of a six month reporting period, the first information on the number of members must be presented within two months from the date of forming such a trade union stating the membership as at the date of such information.

If the trade union fails to present such information, the employer has the right to conclude that the trade union has lost its legal rights. During this time, until the trade union meets its obligation to provide the number of its members, the employer may take any labor law related actions that would normally entail a responsibility to consult with the union without the need to consult. The employer may not, however, deprive the trade union of the right to state that the organization continues to have 10 members employed in the company, and the union’s rights continue to exist.

In practice:

The information in question concerns only the number of the company’s trade union members. The trade union has no duty to provide the names of its members.

Case law:

In accordance with the prevailing view, information submitted late by a trade union is valid from the moment of its delivery but will not affect the actions the employer took in the period during which the obligation to consult the trade union was not binding.

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Employee Representatives
Does the employer have to consult employees about the introduction of a settlement period longer than four months?

Yes. The employer may extend the settlement period only after consulting the appropriate employee representatives. This is a consequence of the rule stating that a longer settlement period may be introduced:

  • As a part of a collective bargaining arrangement,
  • As a part of an agreement with trade unions operating inside the company, or
  • As a part of an agreement with employee representatives elected ad hoc, if no trade unions operate in the employer’s establishment.

If there are no trade unions, and no employee representations have been elected, the employer must cause that ad hoc elections of such representatives will be held. The Labor Code does not prescribe any lection method or term for which the representatives are elected, which means that the employer has a certain degree of freedom on this issue.

In practice:

It is assumed that the ad hoc employee representatives are persons elected by the body of employees to represent their joint interests. Although the employer establishes the procedure for the appointment of representatives and the duration of their terms of service, the representatives are elected by the employees. Specific rules for the election of employee representatives may be set out by the employer, for instance, in the workplace regulations.

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Employee Representatives
Who determines the method of elections of employee representatives?

The method of electing employee representatives is determined by the employer, who may not interfere in the elections after the election rules are set. To minimize the risk that the elected representatives will not be a genuine representation of employees, the employer should determine transparent election rules. The employer determines the rules at its own discretion by indicating the number of representatives, term of office (if any), election method, deadline for candidate submissions, election dates, preparation of ballot cards, etc. The employer also defines the scope of the representatives’ authority, i.e. whether employee representatives are elected to solve a specific problem or to represent the staff generally for a definite term.

The employer must not nominate representatives, define the circle of candidates or limit employee’s voting rights, e.g. by introducing provisions on minimum seniority, age, gender, education, etc.

In practice:

The State Labor Inspection Office may not invalidate elections of employee representatives carried out contrary to regulations, but it may impose a fine on the employer if it finds that consultations were held with employee representatives who are not a genuine representation of the staff.

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Employee Representatives
When does the employer not have to cooperate with trade unions?

The employer does not have to cooperate with a trade union whenever such cooperation is impossible due to procedural errors on the part of the union. Trade unions are obligated to submit to the employer information about the total number of its members every six months, as at 30 June and as at 31 December by the tenth day of the month following such period.

If they fail to do so, then, in accordance with provisions of the Trade Unions Act such trade union has lost its statutory rights until these information obligations are complied with. Consequently, the employer does not have to cooperate either on individual or collective labor law issues. Case law treats similarly situations when the number of trade union members falls below 10.

The employer does not have to cooperate with the company trade union in a situation when the employer requests information on protected employees and the trade union fails to furnish the information within five days.

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Employee Representatives
Does the employer have to consult employees when the establishment transfers to another employer in the procedure of Article 23(1) of the Labor Code?

When an establishment or its part transfers to another employer pursuant to Article 23(1) of the Labor Code, it is of significance whether trade unions operate in both employers (the transferor and transferee). If they do, the information and consultation procedure provided in Article 26(1) of the Trade Unions Act is obligatory for both the transferor and the transferee. This means that both these entities must, in each instance of the transfer the establishment or its part, notify the trade unions operating in both of them about the planned organizational changes.

In practice:

If trade unions operate in neither of the establishments, or if there is a trade union in one establishment only, the existing and the new employer must notify employees in writing about the planned date of the transfer of the establishment or its part, legal and economic reasons for the transfer, consequences for the workers’ welfare, and planned steps related to terms of employment, in particular terms of work, pay and requalification.

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In-company Sources of Labor Law
Can employers require their employees to abide by a dress code?

Yes. Employers have the right to expect that their staff will comply with company rules. Employees have to follow the employer’s instructions, unless the instructions are contrary to provisions of the Labor Code or their employment contract. If the employer requires appropriate attire to be worn, employees must comply with such requirements as they are part of the employee’s obligation to take care of the employer’s interests. The employer may set out duties related to attire in workplace regulations, employment contracts or other internal documents in effect in the company. Such duties may also result from custom. It is important for employees to be aware, before starting work, of the obligation to report for work in appropriate clothing.

Case law:

In a judgment delivered in 2005, the Supreme Court of Poland held that the employer has a right to terminate an employment contract with an employee if the employee exposed the employer to losses or posed a threat to the employer’s interests by wearing inappropriate clothes. Failure to comply with office dress codes need not be the stated reason for employment termination. As with other infringements, the employer may impose on the employee a disciplinary penalty in accordance with the provisions of the Labor Code.

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In-company Sources of Labor Law
When must an employer introduce remuneration regulations?

Remuneration regulations must be introduced by employers with at least 50 employees on the payroll and in whose establishments no company or inter-company collective bargaining arrangement is in force.

An employer of at least 20 and less than 50 employees who are not covered by a company or inter-company collective bargaining arrangement must lay down terms of pay for work in remuneration regulations, if the company’s trade union makes such a request.

The remuneration regulations must specify the forms of remuneration that the employer uses, the components of the remuneration, a list of cases in which employees are entitled to receive additional remuneration, the rules for the awarding of other benefits under the employment relationship, as well as the terms for the disbursement of amounts due for business trips.

In practice:

The employer may introduce remuneration regulations even if there is no such obligation, i.e. when the company employs fewer than 50 persons.

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In-company Sources of Labor Law
Can employees hired under civil-law contracts receive benefits from the Company Social Benefit Fund?

The employer may decide to extend the pool of persons that can receive funds from the Company Social Benefit Fund to cover persons not listed in Article 2 §2 of the Company Social Benefit Fund Act. Such extension may cover persons hired under civil-law contracts or sole traders.

In practice:

To introduce such a possibility, a relevant provision must be included in the regulations for the Company Social Benefit Fund.

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In-company Sources of Labor Law
Can the employer pay for employees’ sports activities with funds from the Company Social Benefit Fund?

Welfare activities may include benefits for sport and employee recreation, including purchases of swimming pool or gym passes, or refunds of employees’ expenses in this respect. The right to receive certain benefits from the Company Social Benefit Fund must always result from its regulations. The employer, who allocates the fund’s money, may not grant benefits that are not based on the fund’s regulations.

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In-company Sources of Labor Law
Can the employer pay for a Christmas party for employees with funds from the Company Social Benefit Fund

Money from the Company Social Benefit Fund may be used to finance only the employer’s welfare activities, which do not include the organization of parties. An event such as a Christmas party must involve rest, cultural activities, or sports and recreation of employees. A meeting with elements of cultural activities, such as musical or acting performances, or sports activities, such as team games or sports tournaments, may be financed from the Fund.

Case law:

This view is confirmed in the Supreme Court judgment of 23 October 2008 (II PK 74/08). The court held that the employer must be guided by social conditions while granting benefits from the Company Social Benefit Fund. “Social benefit fund regulations may provide for using the fund’s money for other purposes within the framework of social activity and determine other rules for the use of these benefits, e.g. general availability on equal terms with respect to integration events.” Thus, if the employer chooses a collective form of filling the employees’ social needs, the employer does not have to make their participation conditional on their life, family and material situation.

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In-company Sources of Labor Law
Does an amendment of labor laws make it necessary to amend the regulations binding in the company?

Internal legal acts may not be less advantageous to employees than labor law provisions. Therefore, if new statutory provisions are more advantageous to employees, they will replace the internal regulations automatically. Conversely, if the legal status following the amendment is less advantageous to employees, the employer’s intentions at the time when the regulations were made need to be established. If the provisions of the internal regulations with the wording conforming to the previous statutory legislation were transferred directly from the statutory act to the regulations, the new statutory provisions must be applied. On the other hand, in a situation when the inclusion of specific statutory provisions in the workplace regulations resulted from an express intention of the employer to regulate a given issue in a specific way, the existing internal regulations will apply.

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In-company Sources of Labor Law
How must the employer notify employees about changes to workplace or remuneration regulations?

The employer is obligated to inform employees about any change to the workplace and remuneration regulations. It does not matter whether the employee actually makes him-/herself familiar with the changes but only whether objectively he/she has had an opportunity to do so. The employer must communicate the remuneration regulations to the staff in the manner customarily used in the establishment. This rule also applies to persons on long-term doctor’s leave or holiday leave, namely the employees who are not working temporarily for a valid reason and have no opportunity to make themselves familiar with the new documents in the company.

In practice:

With a potential court dispute in mind, the employer must keep evidence confirming that the employees had an opportunity to make themselves familiar with changes to the regulations. It is the employer that must prove that it fulfilled its duties.

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Other Documents
What is the minimum salary amount?

The minimum salary is determined annually, and is currently (2019) PLN 2,250, gross. The annual adjustment of this amount means that employers must annually update their calculations of salary-dependent employment benefits.

In practice:

Increases in the minimum salary increase the level of the following: the nighttime work benefit, the minimum remuneration for downtime, and the minimum damages for a violation of the principle of equal treatment in employment or for mobbing.

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Other Documents
Medical packages for employees: are they always beneficial?

Administrative courts have ruled that the payment of premiums by employers who buy medical packages results in origination of income for employees because they receive free services. As a result, an employee’s income, that must be declared in his/her annual tax return, increases. The increased income may result in employees being deprived of benefits that they would otherwise be entitled to (e.g. family support benefits) or being placed in higher tax brackets.

In practice:

A solution that may secure employers against potential claims by employees is to allow employees to choose whether or not they wish to be covered by a medical care package.

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Other Documents
To what extent may the employer change a job description and work assignments without the employee’s consent?

To change pre-agreed terms of employment to ones less favorable for the employee, the employer is obligated to terminate the employment contract, having given notice of the termination ahead of time, or obtain the employee’s consent to the change.

Once the old terms of employment are terminated, the new terms must be offered in writing. If the offer is rejected by the employee, the contract terminates at the end of the notice period. If the employee does not reject the new terms during the first half of the notice period, the new terms are regarded as accepted and enter into force after the end of the notice period. The duration of the notice period is the same as for employment termination and is stipulated by the Polish Labor Code.

In practice:

Only immaterial changes (changes that do not change the basic nature of the employment contract) may be made without the consent of the employee. An example of an immaterial change is a change in the way an employee reports to his/her superiors. A change of job description and work assignments may be regarded as a material change if a significant proportion of work assignments is subject to the change.

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Other Documents
What are the main disciplinary measures that may be used against employees?

The employer may impose the following penalties on employees:

  • An admonition (reprimand);
  • A serious reprimand; or
  • A financial penalty.

Where the employee fails to observe the provisions related to occupational health and safety or fire protection, leaves work without an excuse, or reports for work under the influence of alcohol or drinks alcohol during working hours, the employer is entitled to penalize him/her.

The penalty must be imposed within two weeks of the employee’s superior becoming aware of the infringement and within three months of the infringement’s occurrence. A penalty may be imposed only after the employee is given a hearing. If, due to the employee’s absence from the workplace, he/she cannot be given a hearing, the two-week period does not begin, or, if begun, is suspended until the employee returns to work.

The employee must be notified by the employer in writing of any penalty imposed and of the nature of the infringement. The date of the infringement must be stated and the employee must be advised of his/her right to file an objection along with the time limits for doing so. A copy of the notice will be placed in the personal file of the employee.

In practice:

A penalty will be deemed to be of no effect and a copy of the notice of the penalty will be removed from the employee’s personal file after a year of further work without any incident. The employer may consider the penalty to be of no effect sooner.

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Other Documents
Does the non-competition obligation apply to employees after a short period of employment?

Yes. Employers often choose to conclude a post-employment non-competition agreement while hiring employees, knowing that the employees will have access to critical business information. In most cases, this is unproblematic, but employers should remember that labor law provisions do not stipulate a minimum length of service necessary for a non-competition agreement to be valid after the termination of employment.

In practice, this means that, even if employment is terminated a short time after hiring (e.g. on the employee’s request), the non-competition agreement will continue to be in force and the employer will be obligated to pay the former employee compensation throughout the whole non-competition period. The Supreme Court has ruled that short-term employment and contract termination at the request of the employee do not constitute grounds for the early expiry of the non-competition obligation .

In practice:

To minimize any adverse consequences of signing an agreement on non-competition after the end of employment (e.g. in the event that an employee terminates employment after a short time from hiring), the employer must provide in the agreement for the possibility of its early termination, or for the shortening of the non-competition period, paired with an appropriate reduction in the amount of compensation due.

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Other Documents
To what extent may the employer change the location of an employee’s workplace without his/her consent?

When the address of the workplace (e.g. the employer’s principal place of business) is specified in the employment contract and the employer plans to change it, notice of the termination of the current terms of employment is generally required.

An employee may, however, be assigned to work in any other place than that specified in the contract of employment for a period of less than three months in a calendar year, if this is justified by the employer's needs, unless this reduces the employee's pay or is inappropriate to the employee's qualifications. In such a situation, the employer may impose a change of workplace without changing the terms of employment.

In practice:

If the employment contract specifies a city as a place of work, a change of workplace within the same city will not require a notice of termination of the terms of employment, regardless of the distance from the original place of work to the new one.

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Other Documents
What disciplinary measures may be imposed by employers on employees?

The employer may impose an admonition (upomnienie) or a serious reprimand (nagana) if employees violate:

  • The established work organization and workplace order,
  • Occupational health and safety regulations, fire regulations, and
  • The adopted method of confirming arrival at work and justification of absences from work.

Admonitions are usually used for minor infractions, whereas serious reprimands are used for graver violations of duties.

The employer may also impose financial penalties on employees who fail to comply with occupational health and safety regulations or fire regulations, leave the workplace without an excuse, or report for work intoxicated or drink alcohol during working hours. The financial penalty per infraction may not be higher than the employee’s daily wage, and the total financial penalties may not exceed one tenth of the employee’s remuneration.

When imposing the penalty, the employer must take into account, among others, the type of violation committed, the degree of the employee’s fault and his/her recent attitude to work.

Case law:

In accordance with case law, employers may not impose penalties that are disproportionate to the degree of the employee’s fault and must take into account the employee’s overall behavior.

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Other Documents
For how many days in a year may employees receive sick pay?

Employees receive sick pay for 182 days of absence at work in a year, and 270 days in the case of employees with tuberculosis or when their incapacity for work occurs during pregnancy.

During the first period of absence, employees receive sick pay from the employer. The length of this period depends on the employee’s age. Employees aged under 50 are eligible to receive sick pay for 33 days in a calendar year, and older employees—for 14 days. Following the end of these periods, employees may apply to the Social Security Authority for sick pay.

Employees are eligible to receive 80% of their remuneration for the duration of the absence at work caused by an illness and 100% of their remuneration if their absence is caused by an accident at work or an illness during pregnancy.

In practice:

The statutory periods (33 and 14 days) may be extended by the employer, for example in an employment contract. They cannot be shortened.

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Other Documents
Can the employer obligate an employee to return the costs of training incurred in connection with his/her employment?

The Labor Code stipulates that the employer may enter into an agreement with the employee to finance the employee’s training where the employee undertakes not to terminate his/her employment contract for a specified time or else undertakes to return the training costs. The maximum period for which the employee has to work off the training is three years. The amount of the training costs that the employee is obligated to return to the employer must be in proportion to the time left until the end of the stipulated period.

In practice:

The agreement on the improving of the employee’s qualifications may be a separate document or a part of the employment contract.

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Other Documents
Does a non-compete contract transfer onto a new employer if the establishment transfers in the procedure of Labor Code Article 23(1)?

No. In line with Article 23(1) of the Labor Code, if an establishment or its part is transferred to another employer, the new employer becomes party to the existing employment relationships by operation of law, but this does not apply to non-compete contracts covering post-employment periods.

Case law:

This view was presented by the Supreme Court in its judgment of 11 February 2015 (I PK 123/14). The Supreme Court held that a post-employment non-compete contract is not an element of an employment relationship that is regulated by Article 231 of the Labor Code and therefore the obligation to pay compensation arising under such an agreement does not transfer to the new employer. This view resolves controversies concerning the nature of such contracts which are considered civil-law contracts (even though they are regulated in the Labor Code), because obligations under them exist between the parties that are no longer bound by the employment relationship.

This view was approved in a resolution of the Supreme Court of 6 May 2015 (file ref. III PZP 2/15).

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Other Documents
How to correctly formulate the right to rescind a non-compete contract?

Labor law does not provide for a possibility of the rescission of a non-compete contract by the employer. Case law indicates, however, that the introduction of the contractual rights to rescind a non-compete contract after the end of the employment relationship is not contrary to labor law. For such a clause to be effective, the duration of the right to rescind must be defined. It may overlap with the duration of the competition prohibition. The right to rescind a non-compete contract expires upon the end of that period.

If the rescission right is exercised, the contract is considered never executed. As a consequence, the competition prohibition ceases to be binding and the employee must return the compensation received for compliance with the competition prohibition, unless this obligation is waived.

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Other Documents
What are the consequences of stipulating a lower-than-statutory compensation in a non-compete contract?

In accordance with one of the fundamental labor law principles, provisions of contracts and other documents related to employment relationships may not be less advantageous to the employee than those set out in labor law regulations. Therefore, if non-compete compensation is stipulated at a level lower than that set out in the Labor Code (25% of the remuneration received by the employee before the end of his/her employment relationship), the non-compete contract remains valid and the compensation amount is by operation of law established at the minimum level specified in the Labor Code.

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Other Documents
What insurance is required for an employee posted to work abroad?

If an employee is posted for a period of up to two years, he/she may continue to be covered by social insurance in Poland, provided that he/she remains employed by the Polish employer, the work is performed for the posting employer throughout the entire delegation period, and that the posting company conducts a considerable part of its activity on the territory of Poland.

In practice:

The employer posting the employee must issue an A1 form to him/her. The employee may be required to present this document to competent authorities during the period of posting. Form A1 may be obtained from an appropriate branch of the Social Security Authority.

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Other Documents
What are the minimum work conditions for an employee posted to work abroad?

Regulations of Directive 96/71/EC of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services apply to employers posting their employees to the Member States of the European Union and the European Economic Area. The directive obligates employers to observe minimum work conditions that are in force in the country to which the employee is posted:

Minimum remuneration and overtime pay rate;

  • Minimum rest periods;
  • Maximum work periods;
  • The terms on which employees are provided, in particular by temporary work agencies;
  • Protective measures provided for children, minors, women who are pregnant or who return to work after a childbirth;
  • Equality in employment and non-discrimination regulations; and
  • Health protection and occupational health and safety.

If the work conditions of the country from which the employee is posted are more advantageous than those of the country of posting, the employer may leave the existing (more advantageous) conditions.

On 11 April 2018 the EU Ambassadors adopted a text developed with the European Parliament of the amended directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. The bill envisages major changes and imposes additional duties on employers posting employees within the territory of the EU states, but these regulations are likely to come into force in mid-2020.

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Other Documents
On what conditions may the employer use the employee’s image?

In line with the GDPR (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC), an employee’s image is a special category of personal data.

The employer must obtain a voluntary and express consent of an employee to use his/her image. The consent may not be general, i.e. it should concern the specific manner of using the image. In accordance with GDPR guidelines, the obligation to obtain the employee’s consent also applies to a situation when the employee’s image is to be used on an ID badge.

In practice:

If the employer plans to place the photographs of the employees on the company’s website, it is advisable to obtain the express written consent of the employees. Otherwise, the employer exposes itself not only to liability for violating the GDPR but also to employees’ claims that their personal rights have been violated.

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Other Documents
Does the employer acquire copyright to works created by employees?

Yes. Unless the employment contract stipulates otherwise, the employer acquires, upon the acceptance of the work, copyright to the works created by the employee as part of his/her obligations under the employment relationship. The employer’s acquisition of the copyrights to such works is restricted by the purpose of the employment contract.

In practice:

If a computer graphic designer creates graphic designs as part of her employee obligations, the copyrights to these works will be acquired by the employer. If, however, the same graphic designer has also created software outside his employee duties, the copyrights to the software will not be automatically acquired by the employer.

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Other Documents
Can the employer record employees at work?

Yes, in line with the new Labor Code regulations introduced by the 10 May 2018 Personal Data Protection Act. If it is necessary to ensure employee safety, protect property, oversee manufacturing or keep confidential information whose disclosure could expose the employer to damage, the employer may introduce surveillance in premises of the establishment and surrounding areas, namely technical measures enabling video recording.

Generally, visual monitoring must not be used in sensitive areas such as bathrooms, canteens, cloakrooms, smoking rooms or offices used by trade union organizations. Such monitoring is permitted however, if it is necessary in such premises to ensure safety and for other purposes indicated in the preceding sentence and if it does not violate employees’ dignity and other personal rights, and the principle of trade union freedom and independence.

Monitored areas must be marked clearly and legibly and information about introducing visual monitoring should be delivered to employees in a manner adopted in the employer’s company, not later than two weeks before its operation begins. In addition, newly hired employees must receive written information on the purpose, scope and manner of monitoring application before they can start work.

In practice:

Video recording may not be used to confirm that employees duly perform their duties. Employers must process and store video recordings only for the purposes for which they were recorded, for a period of up to three months.

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Other Documents
Are employees entitled to take a cigarette break?

Cigarette breaks are not regulated in the Labor Code, but the regulations provide for other breaks that employees may take. The employee has the right to decide how he/she will use them. The employer may not interfere with the way breaks are used, so the employee may use his/her break for smoking.

Employees are entitled to take the following breaks:

  • A break of at least 15 minutes, included in the working time if the daily working time is at least six hours,
  • A 5-minute break included in the working time after each hour of work with a computer screen.

In addition, in accordance with the Labor Code, the employer may introduce an additional break of up to 60 minutes not included in the working time.

In practice:

The hourly break should be used for having a meal or attending to personal business but the employee may use it for smoking. This break must be used in one go during the day. This means that the employee may not decide to use the hourly break in parts, for example to spend 10 minutes of every hour for smoking.

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Other Documents
May an employer with more than 100 employees have an external occupational health and safety service?

No. The State Labor Inspection Office consistently holds that employers with more than 100 employees may not assign tasks related to occupational health and safety to external specialists.

Case law:

The Supreme Administrative Court ruled on 13 October 2006 (file ref. I OSK 263/06) that employers with more than 100 employees are obligated to set up an occupational health and safety service. The employer may not assign the tasks of this service to any employee having another position or to any external specialists.

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Other Documents
Can an employee of the occupational health and safety service perform any other duties?

Yes. This is permissible but only in establishments employing between 100 and 600 employees. The Regulation of 2 September 1997 on occupational health and safety services stipulates that any employer with the staff of 100 to 600 must set up an occupational health and safety (OHS) unit in which one employee (full- or part-time) or more employees of the service will work. The OHS employee working part-time may be given other tasks to complete but only under a separate employment contract in which the employee will undertake to perform other type of work (i.e. other than work in the OHS service).

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Other Documents
Does a change of the employer’s business name or legal form entail an obligation to amend employment contracts?

Generally, if the employer’s business name or legal form changes, there is no statutory obligation to reflect this change in employment contracts. This does not apply to the situation when the employment contract contains provisions stipulating the employer’s obligation to communicate the change.

In practice:

For the avoidance of doubt, employers communicate to employees the change of the business name or legal form in the manner customarily adopted in the company, e.g. by posting a notice on a notice board or through the Intranet.

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