This summary of age discrimination law in Poland has been prepared by Raczkowski Paruch, the Ius Laboris member for Poland: www.raczkowski.eu
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. Poland has a unitary system of national employment law. No local employment laws exist. 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.
Age discrimination was first prohibited in 1996. The new law, however, did not have properly structured sanctions and hence had little practical impact. Fully fledged age discrimination law was introduced in 2004 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. That act 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). The matter is disputable especially with respect to direct discrimination as the poor quality of the legislation and lack of relevant case law blurs the picture.
Polish age discrimination law covers employees, job applicants, the self-employed and those working on the basis of service contracts or other civil law contracts.
Agency workers must be treated equally by the agency – the agency as their employer is covered by the age discrimination legislation. The law specifically regulating agency work requires that the agency workers are also treated equally with the employer user’s own employees.
There are no categories of employees who are generally excluded from the protection against age discrimination.
There are no age limits to protection against discrimination. Discrimination against all age groups, young and old, is prohibited.
What enforcement/remedies exist?
The employee’s right to claim “compensation” is the sanction for discrimination. The compensation should be equal to the full damage (actual loss and lost profits) incurred by the discriminated employee, but not smaller than the amount of minimum national wage (in 2016 approx. €430 per month). In practice, when discrimination occurs in relation to pay, the discriminated 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.
It is understood that when discrimination causes no pecuniary damage to the employee, the employee can 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.
In 2008 the Government Plenipotentiary for Equal Treatment was established. 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.
How common are claims?
When it comes to statistics, the number of cases regarding discrimination and equal treatment is constantly increasing. Claims based solely on age discrimination are still uncommon due to low awareness of the employees. In practice, instances of unequal treatment based on age are very common. The public, however, is 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, which is usually not remunerated, and more frequently claims for discrimination. The latter however, are rarely based on age and most often on other strands of discrimination. Also, 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. Clearly, 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.
We spend a lot of time advising employers on drafting of various internal policies, regulations, redundancy plans etc. to minimise the risk of discrimination claims.
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?
The following are the important exceptions from the principle of equal treatment in general:
- 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).
The statutory minimum wage is lower in the first year of employment (80% of the standard minimum wage). 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).
Retirement benefits in Poland are statutory. The role of private pension plans is insignificant. Hence, the employers do not establish retirement ages and this is not an issue for practice of employment law.
The statutory pension age in Poland was risen by the previous government from 65 years for men and 60 years for women to a uniform level of 67 years. The amendment is taking effect on a gradual basis. The final pension age of 67 years affects men retiring no sooner than in 2020 and women retiring no sooner than in 2040. The new government intends to decrease the pension age to the previous level.
There is one set of cases which certainly is interesting from the perspective of age discrimination. The Polish Supreme Court has consistently – until very recently – ruled that the employer can dismiss an employee solely because the employee reaches retirement age and acquires the right to pension. The Supreme Court held that in the situation of high unemployment it should be allowed to free up jobs by dismissing people who gained another source of income such as retirement pension (I PK 7/04, ruling of 2004.11.04). In more recent cases the Supreme Court 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 2014.02.06). The Supreme Court established the rule that reaching retirement age cannot be the sole reason for termination of employment. Such termination would be considered indirect age discrimination.
The Supreme Court had also discussed this issue from the perspective of sex discrimination – in view of different retirement ages for men and women. Initially the Court held that termination of employment justified by reaching the retirement age (of 60 for women) and acquiring the right to retirement pension by a female employee cannot be considered as discriminatory treatment based on age or sex (I PKN 31/99, ruling of 1999.04.21). However in a very 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 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).
The Supreme Court also stated that in a case of poor economic situation, terminating the employment contract with the youngest employee, with the greatest opportunity to find a new job, cannot be considered discrimination (I PK 238/10, ruling of 2011.04.07).