In the times of the growing SARS-CoV-2 pandemic combined with other pressing issues in the Polish Parlament, some of the planned legislative changes have been lately given less attention, both by legislative bodies and other entities. Although the women’s rights have recently become a topic of a very fierce debate on the Polish political scene, the discussion covers areas other than wage gap, and currently the question of wage inequalities between women and men and possible means of combating this phenomenon has been overshadowed by more urgent issues. These may be the reasons why the works on the parliamentary bill on the change of the Labour Code (No. 463) have not advanced lately. According to the applicants, the project is aimed at improving the position of women in the labour market and strengthening the legal instruments ensuring respect for the principle of equal treatment in terms of equal pay.
What does the bill include?
The planned change extends the definition of workplace bullying by supplementing it with an additional premise. In the current wording, the Labour Code stipulates that workplace bullying means actions or behaviours concerning an employee or directed against an employee, consisting of persistent and long-term harassment or intimidation of an employee, resulting in their decreased evaluation of their professional suitability, causing or aimed at humiliating or ridiculing the employee, isolating them or eliminating them from the group of co-workers. The bill provides for adding, apart from the persistent and long-term harassment or intimidating, a third type of action which constitutes workplace bullying - differentiating the amount of remuneration based on the employee’s gender.
In the justification of the bill it was indicated that, despite numerous legal regulations aimed at equal pay and eliminating gender pay gap, the average remuneration of women and men in Poland is still significantly disproportionate, which requires adopting new solutions aimed at effective enforcement of the principle of equal pay.
What are the current regulations related to this issue?
The Labour Code in the current wording provides for instruments to combat wage inequality under anti-discrimination provisions. Article 183a § 1 of the Labour Code constitutes a general prohibition of discrimination, including i.a. discrimination based on gender. Article 183b of the Labour Code indicates directly that treating an employee differently on one or more grounds referred to in the abovementioned provision with an effect of, inter alia, establishing unfavourable remuneration for work or other conditions of employment, constitutes a violation of the principle of equal treatment in employment, unless the employer proves that the differentiation was due to objective reasons. Moreover, article 183c of the Labour Code stipulates that the employees have the right to equal remuneration for the same work or work of the same value. A person against whom an employer has violated the principle of equal treatment in employment is entitled to a compensation in an amount not lower than the minimum wage (art. 183d of the Labour Code). Therefore, an employee does have legal instruments which can be used in the event of being discriminated.
What will be the result of the change in the Labour Code?
The employees will gain an additional legal instrument which can be used to act against unequal treatment in employment – they will be entitled to seek compensation on the grounds on anti-discrimination provisions, as well as on the grounds of anti-workplace bullying regulations. According to the article 943 § 3 of the Labour Code, an employee for whom the workplace bullying has caused health problems, may seek from the employer a compensation for the inflicted harm. The purpose of the proposed regulation is to enable employees to seek compensation on this basis. If differentiating the amount of the remuneration based on gender is considered workplace bullying, then an employee may pursue claims on the basis of this article rather than on the current anti-discriminatory regulations.
The bill has met various opinions. Forum Związków Zawodowych (the Trade Union Forum) has reacted positively to the attempt on modifying the definition of workplace bullying, but at the same time stated that the planned changes do not address all types of mobbing and discriminatory behaviour in terms of remuneration. The organisation indicated, among others, that unequal pay may also be due to factors other than gender, while the proposed definition will recognize as workplace bullying solely differentiating remuneration based on the gender and will leave all other criteria out of this regulation.
Both the Supreme Court and the Chief Labour Inspector in their comments to the bill have pointed out that there is a well-founded judicial practice of the Polish courts to understand that the compensation on the basis of article 183d of the Labour Code (compensation for violation of the principle of equal treatment in employment) covers both material and non-material damage. This means that the employees in the current legal situation can seek damages for the inflicted harm on the grounds of the compensation for violation of the principle of equal treatment. Therefore, the proposed changes will not open new possibilities to the employees, but rather – as the Supreme Court has stated – may bring the opposite effect and weaken the employee’s protection because of two reasons.
Firstly, considering as the workplace bullying, which entitles an employee to seek compensation, solely the discrimination based on the gender may lead to the legal interpretation denying compensation for the harm inflicted due to the discrimination based on any other grounds.
Secondly, it will be much harder for an employee to purse their claim on the grounds of the article 943 § 3 of the Labour Code. In case of claims based on the violation of the equal treatment principle, an employee does not have to prove that he has suffered discrimination – the burden of proof is reversed to the employer who must prove that differentiation of the employees’ situation was justified by objective reasons. In case of the compensation claim based on workplace bullying on the grounds of article 943 § 3 of the Labour Code, the burden of proof rests fully with the employee, who must prove not only that he was unequally paid on the basis of gender, but also that this action has fulfilled all other premises of workplace bullying (for example that this action has caused or was aimed at achieving negative results indicated in the definition of mobbing), as well as that the inflicted health problems were a result of workplace bullying. Biuro Analiz Sejmowych (Sejm Bureau of Research) in their assessment of the legal effects of the bill has also expressed concern that proving an adequate causal relationship between the differentiation of remuneration based on gender and other premises of workplace bullying may constitute a serious problem from the employee’s perspective.
At what stage are the changes?
The bill has passed its first reading at the session of the Sejm (the lower chamber of the Polish Parliament) in July 2020, from which it was referred to the Extraordinary Committee for Codification Changes (Komisja Nadzwyczajna do spraw zmian w kodyfikacjach). Currently it is being processed in one of the permanent subcommittees (Podkomisja stała do spraw nowelizacji Kodeksu pracy oraz Kodeksu postępowania administracyjnego) – as of today, the date of the next session of the subcommittee is not known. If the bill is approved in the proposed form, the new regulation will come into force 30 days after its publication. Due to the accumulation of numerous legal problems around the ongoing pandemic situation and other urgent issues, it cannot be expected that work on the bill will be accelerated; however, it is worth remembering that such bill on the changes in the Labour Code is currently being processed and monitoring discussions around this subject. Introducing a workplace bullying definition in the planned wording may certainly raise many discussions as to the scope of the concepts of discrimination and mobbing, claims for damages on these grounds and the relationship between them.
Julia Wróbel, GKR Legal