Which issues would you most highlight to someone new to your country?
Flexible employment arrangements are increasingly popular in Poland and can take various forms – in particular, many individuals are hired under civil law agreements. Finally, employees have been given greater protections in recent years with regard to various types of childcare leave and Polish labour law is now much more complex in this regard. As of 1 January 2019, individuals hired under civil law agreements are entitled to join trade unions.
What do you consider unique to those doing business in your country?
The Polish labour market is more flexible than those of other EU countries. Further, dismissal costs are lower compared with other EU countries.
Is there any general advice you would give in the employment area?
Employers in Poland should be aware of:
- potential changes regarding taxation and social security contributions;
- complex rules regarding childcare leave; and
- complex rules regarding work permits and the legalisation of work by foreign employees.
Employers should also be aware that breaches of the EU General Data Protection Regulation (GDPR) may incur severe penalties.
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
Work was underway to develop a new Labour Code, but this appears to have stalled. Poland’s parliamentary elections will take place in 2019 and politicians are likely to promise new benefits to employees. Politicians have already proposed:
- a tax exemption for employees under the age of 26;
- an additional benefit for parents (ie, a monthly benefit for a first child); and
- a new minimum pension for retirees (paid once a year).
Polish companies are in the process of implementing employee capital plans (a type of additional pension scheme). These plans will be co-financed by employers, employees and government institutions. Further, the social contributions for persons with a high annual income (eg, executives and managers) may increase in 2020.
What are the emerging trends in employment law in your jurisdiction?
Work-life balance is becoming increasingly important for employees, and home-working and teleworking are becoming more popular. In certain sectors (eg, construction), it can be difficult to find new employees. In addition, the Polish labour market is becoming more international. Many companies have started to employ foreign citizens – mainly from Ukraine, but also from other countries. This process requires knowledge of work permits and legal residency. Further, in this GDPR era, employers must consider the protection of employees’ personal data. The maximum penalty for a breach in this regard is 4% of the company’s annual turnover.
The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
In principle, the Labour Code governs employment relationships in Poland.
Who do these cover, including categories of worker?
The Labour Code covers employees who are employed:
- for a trial period;
- for a definite term; and
- for an indefinite term.
Are there specific rules regarding employee/contractor classification?
Yes, employment contracts cannot be replaced with civil law contracts which determine working conditions (ie, work performed under the employer’s supervision at a time and place specified by the employer).
Must an employment contract be in writing?
Employment contracts should be executed in writing. Where an employment contract has not been executed in writing, prior to permitting the employee to perform their work duties, the employer must confirm to the employee, in writing:
- the parties to the contract;
- the type of contract; and
- its terms and conditions.
Are any terms implied into employment contracts?
If an employer sends an employee a unilateral letter in which it offers the employee a salary increase, this will be binding. The same rule applies to any internal regulations which are more favourable for an employee than those of their employment contract. If certain benefits are granted informally without written documentation, there will be a risk that such benefits may become part of the employment relationship.
Are mandatory arbitration/dispute resolution agreements enforceable?
An arbitration clause which applies to disputes that fall within the subject matter and scope of the Labour Code may be drawn up only after a dispute has arisen and must be made in writing.
How can employers make changes to existing employment agreements?
If an employer intends to change important terms of an employment contract or introduce a change which is detrimental to the employee, it must obtain the employee’s consent or follow the formal procedure which applies to unilateral changes to an employment contract. The procedure for serving a unilateral notice is similar to that which applies to notices of termination (ie, the employer must observe a notice period, the notice must be in writing and, in the case of a change to an indefinite term employment contract, the employer must have a justifiable reason for doing so).
Is a distinction drawn between local and foreign workers?
EU and European Economic Area citizens are entitled to work under the same terms as Polish citizens. Individuals from other countries must apply for work permits. There is some preferential treatment for citizens of countries neighbouring Poland (eg, Ukraine).
What are the requirements relating to advertising positions?
Ads for employment positions should comply with the principles of equal treatment in employment and the EU General Data Protection Regulation.
Background checks What can employers do with regard to background checks and inquiries in relation to the following:
It is admissible to obtain a certificate confirming that a candidate has no criminal record if a specific legal provision allows for this. In other words, such a check is permissible in exceptional circumstances.
Under new rules regarding the processing of employee personal data, background checks with regard to a candidate’s medical history are permissible only if the candidate consents to such processing and provides the data on their own initiative. However, the scope of data collected must be minimised and adequate for the purpose of the data processing, which may raise doubts as to whether such processing is necessary.
Only if the candidate gives their consent (the scope of data collected must be minimised and adequate for the purpose of the data processing).
An employer that wants to hire a foreign employee (ie, an employee from outside the European Union or the European Economic Area) must ask them to present a valid document entitling them to stay in Poland before they start work.
Employers must obtain a candidate’s consent to conduct a background check of their social media.
Wages and working time
Is there a national minimum wage and, if so, what is it?
In 2019 the national minimum wage is Zl2,250 (€525) gross per month. The minimum wage is usually increased annually.
Are there restrictions on working hours?
Hours and overtime
What are the requirements for meal and rest breaks?
If an employee works six or more hours per day, they are entitled to a paid break of at least 15 minutes.
If an employee uses a visual display screen in their work, they are entitled to a paid five-minute break from using the screen per working hour. Notably, this is a break from using the screen and not a break from work.
Employers may introduce one unpaid break of up to 60 minutes for eating or handling personal matters. However, this is not obligatory.
All employees are entitled to at least 11 hours of undisturbed rest per 24 hours and at least 35 rest hours per week.
How should overtime be calculated?
Employers must check whether working time may exceed eight hours per day and an average of 40 hours in an average five-day working week within an adopted settlement period not exceeding four months.
What exemptions are there from overtime?
Employees who manage a work establishment on their employer’s behalf and the heads of separate units can perform work outside their standard working hours without remuneration or an allowance for overtime. However, heads of separate organisational units are entitled to remuneration or an allowance for overtime or work which is performed on Sundays or public holidays if they do not receive a day in lieu in exchange for such work.
Is there a minimum paid holiday entitlement?
Yes, employees are entitled to 20 or 26 days’ annual leave per calendar year.
What are the rules applicable to final pay and deductions from wages?
In principle, remuneration under an employment agreement is protected against deductions, which are allowed only in situations specified by law (eg, where a court finds an employee liable for a payment or the employee receives a financial advance). All other deductions require the employee’s consent.
What payroll and payment records must be maintained?
Employers should maintain individual records regarding the payment of salaries and other work-related benefits. Separate requirements regarding data retention also apply under tax and social security law.
Discrimination, harassment & family leave
What is the position in relation to: Protected categories
There is a general rule stipulating that employees must be treated equally with regard to:
- the establishment and termination of their employment relationship;
- their terms and conditions of employment; and
- promotions and access to professional training.
Further, employees cannot be discriminated against on the basis of:
- political beliefs;
- trade union membership;
- ethnic origin;
- sexual orientation; or
- employment agreement (eg, definite or indefinite or full or part-time).
In addition, employees are entitled to special protection against termination during the four years before their retirement.
(e) Sexual orientation?
This category is not mentioned in the labour law, but the list set out in (a) is not exclusive.
Family and medical leave
What is the position in relation to family and medical leave?
The Labour Code provides for:
- maternity leave;
- parental leave (paid and unpaid); and
- paternity leave.
Employees are also entitled to sick leave (in principle, this should not exceed 182 days, although this may be extended in exceptional circumstances. Employers must pay the employee’s remuneration for the first 33 days).
What is the position in relation to harassment?
Harassment is a form of prohibited discrimination. In extreme cases, criminal law may apply.
What is the position in relation to whistleblowing?
Employees have a right to compensation where their employer fails to apply the principle of equal treatment in employment. The exercise of this right cannot constitute the basis for the unfavourable treatment of that employee or place them at a disadvantage. In particular, it cannot constitute grounds for the termination of the employment relationship by the employer, either with or without notice. This rule applies to all employees who provide support in any form to an employee who exercises their rights in relation to a failure to apply the principle of equal treatment in employment.
Certain, separate regulations regarding whistleblowers apply in the financial sector. Further regulations regarding whistleblower protection may also be introduced in the future following the implementation of EU law.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Video monitoring must not violate the dignity and other personal rights of employees or the principle of liberty and independence of trade unions. Further, computer monitoring must not violate the confidentiality of correspondence and other personal rights of employees. Monitoring should be provided for in an employer’s internal regulations and employees should be notified beforehand.
To what extent can employers regulate off-duty conduct?
The regulation of off-duty conduct is not explicitly regulated in Poland. Internal codes of conduct refer to off-duty conduct when they regulate such issues as the prevention of conflicts of interest, mobbing or harassment.
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
There are no specific rules regarding social media. However, there are rules which stipulate how and to what extent employers may monitor employees. Such monitoring should not violate the principle of confidentiality of correspondence or other personal rights of employees.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Where an employee creates a ‘work’ (as defined in the Copyright and Related Rights Act) during the course of their employment relationship, the employer acquires the copyright on acceptance of said work. This principle may be modified by relevant provisions included in the employment contract.
What types of restrictive covenants are recognised and enforceable?
The Labour Code distinguishes between two types of non-compete clauses:
- one which applies during the course of an employment relationship; and
- one which applies after the termination of an employment relationship.
A non-complete clause which applies during the course of an employment relationship relates to the employee’s term of employment and may require them to refrain from performing the competitive activity. In the case of a violation of this obligation, employers may pursue remedies for any loss caused.
In case of a non-compete clause which applies after the termination of an employment agreement, the employer must compensate the employee for having to refrain from performing the competitive activity. This compensation must be paid to the employee for the determined term of the prohibition on competition, as set out in the employment agreement. Both the agreement and the prohibition must be concluded in writing to avoid being declared null and void.
Are there any special rules on non-competes for particular classes of employee?
No. However, a non-compete clause which covers a period following the termination of an employment relationship may be concluded only with employees who have access to particularly important information, the disclosure of which could expose the employer to a loss.
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
Yes, the Labour Code sets out the following penalties for employees:
- reprimands; and
In order to impose one of the above penalties on an employee, employers must follow the grievance procedure within the statutory time limit and give the employee the opportunity to present their side of events.
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
Compared with countries such as France and Austria, Poland is not heavily unionised. The percentage of unionised employees has fluctuated between 15% and 25% over the past 10 years. However, 2019 represents a turning point in this regard; for the first time, Polish law permits all paid employees (including persons hired under civil law agreements) to both form and join trade unions.
What are the rules on trade union recognition?
Trade unions can be established following a resolution of at least 10 authorised persons. Further, trade unions must be registered with the National Court Register.
The right to establish a company union organisation is vested in organisations of at least 10 members who have been employees of the company or performed paid work for its benefit for at least six months. The same rule applies to intercompany union organisations whose scope of operation will cover more than one employer (although the number of members of such an organisation will be determined based on the number of employees of each employer in the intercompany group).
What are the rules on collective bargaining?
Trade unions are entitled to execute collective bargaining agreements (CBAs) with employers. If a trade union initiates negotiations regarding a CBA, the employer must participate, but is not obliged to execute the CBA. A CBA must provide the terms of employment contracts and the mutual obligations of the parties to the agreement. CBAs constitute the source of labour law in Poland. They cannot be less favourable for employees than the Labour Code and other statutory laws. CBAs are more common in industry (eg, mining and energy) sectors.
Poland has separate regulations on collective disputes (which may be conducted only between an employer and a trade union). A collective dispute must be initiated if an employer is notified of its employees’ demands by letter and refuses all or some of them within the time limit indicated therein, which must be at least three days. If, as a result of negotiations commenced immediately, the parties fail to reach an agreement, a divergence protocol must be prepared. Part of the negotiations must be conducted with an impartial mediator selected by the parties or indicated by the minister competent in labour issues. In case of another failure to reach an agreement, another divergence protocol must be prepared. Employees may then either:
- file an application with the social arbitration board of the relevant regional court asking it to resolve the bargaining (such a ruling may not be binding for the parties); or
- commence a strike.
Earlier commencement of a strike is not acceptable. Further, a strike may be commenced only if:
- the majority of the voting employees consent thereto in a vote; and
- at least 50% of employees participate in the vote.
Are employers required to give notice of termination?
Yes, employers must give notice of termination in writing.
What are the rules that govern redundancy procedures?
Employers must provide a written statement on a termination notice. A termination notice for an indefinite term employment agreement must provide grounds that justify the termination. Employment agreements concluded for a trial or definite period are exempt from this requirement.
Where an employer terminates an employment agreement without giving notice, it must indicate its reasons for doing so in the statement on the termination notice.
In case of termination of an indefinite term employment agreement with notice or termination of an employment agreement without notice where the employee is a member of a trade union or has applied to the trade union to defend their rights, the employer must notify the trade union of its intention to terminate the employment agreement.
Are there particular rules for collective redundancies/mass layoffs?
Yes, the Act on Special Principles for Termination of Employment Relationships with Employees for Reasons Not Relating to Employees provides for a special procedure to be followed where an employer needs to dismiss multiple employees. This procedure applies to employers of at least 20 employees. However, whether it need be applied is determined by the limits of acceptable dismissals, which depend on the number of employees. For example, the procedure must be applied if the following limits are met in a 30-day period:
- an employer with less than 100 employees intends to terminate 10 or more employees;
- an employer with between 100 and 300 employees intends to terminate 10% of employees or above; or
- an employer with 300 or more employees intends to terminate 30 or more employees.
Under this procedure, employers must:
- inform the relevant state institution employment offices;
- conduct consultations with the relevant trade unions or employee representatives; and
- determine the course of action during the above process.
What protections do employees have on dismissal?
In case of termination of an employment agreement with notice – and in some cases without notice – the Labour Code provides special protection in certain circumstances (eg, if an employee has been absent from work, is within four years of the retirement age, is pregnant or has performed functions for a trade union).
Further, where an employee is a member of a trade union or has applied to a trade union to defend their rights, the employer must notify the trade union of its intention to terminate:
- an employment agreement for an indefinite period with notice; and
- an employment agreement for any period without notice.
In case of dismissal for reasons unrelated to the employee within the meaning of the Act on Special Principles for Termination of Employment Relationships with Employees for Reasons Not Relating to Employees, the employee will be entitled to one of the following severance payments, depending on their length of service:
- one month’s salary – if the employee has been employed for less than two years;
- two month’s salary – if the employee has been employed for two to eight years; and
- three month’s salary – if the employee has been employed for more than eight years.
The severance payment cannot exceed 15 times the amount of the minimum compensation for work determined on the basis of separate provisions which apply on the date of termination.
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
The labour courts – which are divisions of the district, regional and appeals courts – have jurisdiction over labour disputes. In the cases set out in the Code of Civil Procedure, parties also have the right to lodge an appeal in cassation against legally valid rulings of the labour courts to the Supreme Court.
What is the procedure and typical timescale?
Employees may bring an action against their employer to the labour courts. Depending on the type of case, this will be the relevant district or regional court. All parties to a dispute are entitled to lodge an appeal against a first-instance district or regional court ruling to the regional court or the appeals court, respectively. The length of court proceedings depends on the case’s complexity (ie, the number of trials that must be conducted in the case) and the labour court’s location. In large cities, cases generally take between one and two years at first instance and eight to nine months at second instance. In smaller cities or towns, cases may be resolved more quickly.
What is the route for appeals?
To lodge an appeal against a first-instance verdict, parties must file an application for the preparation of a written justification of the verdict with the court within seven days of receipt. After the written justification has been delivered, the party will have 14 days to lodge an appeal with the second-instance court. An appeal against a district court verdict must be lodged with the regional court and an appeal against a regional court verdict must be lodged with the appeals court. The appeal must be prepared in writing and meet the detailed requirements set out in the Code of Civil Procedure.