This summary of age discrimination law in Poland has been prepared by Raczkowski Paruch, the Ius Laboris member for Poland: www.raczkowski.eu
Poland has a national employment law system. Local employment laws do not exist at the state level. In practice, the role of collective bargaining agreements is rather moderate, even though the intention of the social policy is to promote regulation of employment through collective bargaining.
Polish legislation prohibits “any discrimination” in the field of employment on the grounds of age. Harassment is deemed a form of indirect discrimination. Encouragement to discriminate is also a form of indirect discrimination.
Age discrimination was first prohibited in 1996. The new law, however, did not have properly structured sanctions and hence had little practical impact. It was not until 2004 when fully fledged age discrimination laws were introduced to properly implement the European directives (2000/43/EC of 29 June 2000, 2000/78/EC of 27 November 2000 and 2002/73/EC of 23 September 2002). In 2011, the new legislation on equal treatment came into force, which widened the scope of protection against age discrimination so that not only employees, but also civil contractors were covered.
Arguably, in principle, age discrimination can be justified (see below). Due the lack of robust legislation surrounding this issue and the lack of relevant case laws, direct discrimination is still very much disputable.
Polish age discrimination law covers employees, job applicants, self-employed and those working on the basis of service contracts or other civil law contracts. There are no categories of employees who are generally excluded from the protection against age discrimination.
Agency workers must also be treated equally as employees employed by the end-user entity.
There are no age limits to protection against discrimination. Discrimination against all age groups, young and old, is prohibited.
WHAT ENFORCEMENT/REMEDIES EXIST?
An employee who has been discriminated against may be able to claim “compensation” equal to the full damage (actual loss and lost profits) incurred, but not smaller than the amount of minimum national wage (in 2018 approx. €490 per month). In practice, when discrimination occurs in relation to pay, an employee may claim the shortfall for the past 3 years (statute of limitation). They can also claim a pay rise to match the level of non-discriminatory remuneration. Claims are brought before the labour court.
When the discrimination has caused no pecuniary damage to the employee, the employee may still claim “compensation” which then takes the form of damages for moral injury (e.g. injury to feelings). In such cases the amount should then be established by the court with regard to the extent of the employee’s suffering. It does not have a “punitive” character. If an act of discrimination causes moral injury, the employee may also pursue other claims warranted by the Civil Code, such as an apology in an appropriate form and demand that the discriminatory treatment be ceased.
There is no specific body enforcing the principle of equal treatment. Cases are brought before common courts.
The Government Plenipotentiary for Equal Treatment was established in 2008. It is responsible for implementing and executing anti-discrimination measures.
There are no criminal sanctions for breach of the principle of equal treatment, however in specific cases, discriminatory behaviour may fall under the general criminal sanction for malicious breach of employment law. Such a criminal offence is subject to fine up to approx. € 235,000, restriction of freedom or imprisonment up to 2 years.
HOW COMMON ARE CLAIMS?
When it comes to statistics, the number of cases regarding discrimination and equal treatment is constantly increasing.
Even though in practice, instances of unequal treatment based on age are very common, claims based solely on age discrimination are still uncommon due to low awareness of the employees. The public is often unaware that acts and decisions which are so extremely frequent are in fact illegal.
The most common claims are claims for unfair dismissal. Employees often “add” claims for overtime, and claims for discrimination in this context. The latter however, is rarely based on age and most often on other strands of discrimination. Claims that are brought are often poorly thought out and used as an instrument of pressure for settlement rather than a structured court action.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
As the claims based on age discrimination are still uncommon we can only discuss our expectations.
Acts of unequal treatment on the basis of age most often occur in recruitment. Job advertisements “young waitress needed” or “we offer a job in a young, dynamic team” are very common.
The trickiest issue is the legislation itself which is very unclear on many important issues and on some occasions reaches further than the directive – e.g. open catalogue of discriminatory criteria.
ARE THERE SPECIFIC EXCEPTIONS IN YOUR LAW?
In general, the following are the exceptions from the principle of equal treatment:
- refusal to hire an employee, if it is justified by the type of work and conditions of performance of work but only if the age is a real and decisive professional requirement for employment;
- differentiation based on parenthood or disability (positive action - reverse discrimination);
- differentiation based on length of service (seniority).
Another very important exception from the protection against age discrimination was shaped by case law – this is mandatory retirement upon reaching retirement age (see below – interesting cases).
The statutory pension age in Poland is 65 years for men and 60 years for women.
Retirement benefits in Poland are statutory. The role of private pension plans is insignificant but there is a strong likelihood that a new pension law will come into force in January 2019. This law is not passed yet so its final shape has not been known yet. It is planned that every employer in Poland will be obliged to set up a Polish pension scheme.
There is a set of cases which certainly is interesting from the perspective of age discrimination. The Polish Supreme Court has before consistently ruled that the employer can dismiss an employee solely because the employee has reached the retirement age and has acquired the right to pension. The Supreme Court held that in situations of high unemployment, employers should be allowed to free up jobs by dismissing people who have gained another source of income such as retirement pension (I PK 7/04, ruling of 2004.11.04). This stance was also taken by the Supreme Court in subsequent years, where it was held that reaching retirement age constitutes a legitimate criterion for selecting employees for dismissals based on economic reasons (II PK 19/05, ruling of 2005.09.29, II PK 102/07, ruling of 2008.01.14, II PZP 13/08, ruling of 2009.01.21 and I PK 239/13, ruling of 2014.02.06). However, post-implementation of the anti-discrimination EU directives, the Supreme Court established the rule that reaching retirement age cannot be the sole reason for termination of employment. Such termination would be considered as indirect age discrimination (II PK 300/16, ruling of 2017.10.24). In each case, an employer should indicate an objective reason, justifying the termination (in case of employment contract for indefinite period of time) e.g. improper performance, long-term absences or failure to adapt to new modernisation processes. These reasons can be indirectly connected with the employee reaching the retirement age.
The Supreme Court has also discussed this issue from the perspective of sex discrimination – in view of different retirement ages for men and women (the former being higher than the latter). In a recent case, the Court held that termination of employment with notice solely because a woman has acquired the right to pension at the age of 55 years (reduced retirement age for certain jobs) constitutes discrimination on the grounds of sex (I PK 219/07, ruling of 2008.03.19). The Court has also cited several decisions of the Constitutional Tribunal where the latter held that legal provisions allowing earlier termination of employment with women were unconstitutional (e.g. case K 35/99, decision from 2000.12.05).