Facts Decision Comment In a decision of a panel of seven Supreme Court judges on September 28 2016 (III PZP 3/16), the Supreme Court concluded that bringing a claim against an employer for the unlawful termination of an employment contract pursuant to Article 45(1) of the Labour Code is not a prerequisite to obtaining an award of damages pursuant to Article 18(3d) of the code (ie, on the grounds of discriminatory reasons for dismissal or discriminatory reasons for selecting an employee to be dismissed).


The employee was dismissed on February 26 2009 following redundancies for economic and organisational reasons. The employee was selected for dismissal due to her lack of knowledge of English and SAP software and her lack of team work skills. On February 26 2010 the employee challenged the termination of her employment. The action was dismissed in both instances due to a breach of the deadline for challenging the termination of employment. On February 3 2012 the employee brought an action against the employer for damages for breach of the equal treatment principle in its selection for dismissal due to reasons not relating to employees.

In the first instance, the court ruled that the employee's claim was unjustified, as the employer had applied lawful and non-discriminatory criteria in its selection of employees for dismissal. The court established that the employee's allegation that an unlawful selection criteria had been used (ie, age and previous employment with the former employer) was untrue.

The second-instance court sustained the judgment and dismissed the employee's appeal. However, the court based its decision on different grounds. Namely, it asserted that the discrimination claim was inseparably linked to the termination of employment decision, which had already been subject to other litigation. As a result, the termination of employment decision could not be retried. The employee appealed to the Supreme Court.


Certain previous judicial decisions indicated that employees could claim that a termination notice was unlawful and that their employment had been unlawfully terminated only by instigating an action within seven days (eg, the Supreme Court judgments of June 19 2012 (II PK 265/11) and February 25 2009 (II PK 164/08)). It had also been previously indicated that an employee who did not bring such an action on time could not base his or her claims for damages on the grounds of unlawful termination of employment, including damages for discrimination claimed under Article 18(3d) of the Labour Code, if the discriminatory factor was indicated as a reason for dismissal in the termination notice.

However, the Supreme Court held that lodging a claim for unlawful termination of an employment contract is not a prerequisite for an employee to claim damages on grounds of discriminatory reasons for the termination of employment or discriminatory reasons for the selection of an employee to be dismissed. They are different claims based on different legal grounds, and not lodging the former does not prevent an employee from submitting the latter.

The Supreme Court clarified that in the case of termination of employment for more than one reason, termination may be justified by a non-discriminatory factor, while the other reason may be discriminatory. As a result, an employee's claim for unlawful termination of employment could be dismissed even though he or she is entitled to damages for discrimination.

Further, according to the Supreme Court, the deadline for lodging a claim for the unlawful termination of employment (seven days at the time of issuance of this decision and 21 days at present) is too short to pursue claims for unequal treatment and discrimination and contrary to EU law's principle of effectiveness.


The decision fundamentally changes the risks associated with serving a termination notice and terminating an employment contract and enables employees to make claims long after their employment has been terminated. Terminating employment contracts will be subject to questioning by employees, not only in the short term, in relation to the appeals against dismissal lodged following the termination, but also in the long term, until the limitation period for making discrimination claims expires. In practice, this means that an employee will have three years to contemplate and decide whether to initiate an action for damages based on discrimination.

For further information on this topic please contact Karolina Kanclerz or Katarzyna Pikiewicz at Soltysinski Kawecki & Szlezak by telephone (+48 22 608 7000) or email ([email protected] or [email protected]). The Soltysinski Kawecki & Szlezak website can be accessed at www.skslegal.pl.

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