Bartłomiej Raczkowski Kancelaria Prawa Pracy
Overview
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. The role of collective bargaining agreements is, in practice, 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 directive. There is a draft of new legislation on equal treatment. The said draft widens the scope of protection against age discrimination.
Arguably, age discrimination can be justified (see below). The matter is disputable especially with respect to direct discrimination as the poor quality of the legislation blurs the picture.
Who's covered?
Polish age discrimination law covers only employees and work applicants. It does not cover the self employed and persons 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 limitations. There are no age limits to protection against discrimination and 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 remuneration (in 2010 approx. €330). In practice, when discrimination occurs in the field of remuneration, the discriminated employee may claim the shortfall for the past 3 years (statute of limitation). They can also claim a pay raise 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, in principle, 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.
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?
Discrimination claims are becoming increasingly more common. Claims based solely on age discrimination are still uncommon due to the still 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.
In the past, courts have granted compensation of only insignificant value (as a general rule between €300 - €1000).
Because a full body of equality law was not introduced until recently, 2004, other reliable statistics are not yet available. Court proceedings in Poland often last longer than 2 years.
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” are very common.
We spend relatively 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.
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 ages
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.
Poland maintains different retirement rules for men and women. Retirement age is 60 for women and 65 for men (there are categories of employees entitled to earlier retirement, e.g. teachers, armed forces, miners, war veterans etc.). In addition to age, for employees born before 1949 and some groups of employees born between 1949 and 1968 minimum periods of social security contributions must also be satisfied – they are also different for men and women.
Interesting cases
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 holds 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 and II PZP 13/08, ruling of 2009.01.21). In the latter ruling 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.
The Supreme Court had discussed this issue also 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)