Bartłomiej Raczkowski Kancelaria Prawa Pracy
Overview
Polish legislation prohibits “any discrimination” in the field of employment - direct and indirect discrimination, in particular 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. 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 pertinent 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.
Arguably, age discrimination can be justified (see below). The matter is disputable especially with respect to direct discrimination as 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 such as e.g., prohibition of only discrimination against old and not young workers.
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 (approx. EUR 230). 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 pay raise to match the level of non-discriminatory remuneration. Claims are brought before 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 (violation of the employee’s personal rights (e.g. dignity) injury). 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 pursue also other claims warranted by the Civil Code – especially demand apology in appropriate form and contents 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 behavior 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 employees’ claims are claim for unfair dismissal. Employees often “add” claims for overtime, which admittedly is very often not duly remunerated, and more and more often claims for discrimination. The latter however, are rarely based on age and most often on other discriminative criteria - note that Poland has an open catalogue of discriminatory criteria. Also, the claims are often poorly thought out are meant rather as an instrument of pressure for satisfactory settlement than a structured court action.
As full body of equality law was not introduced until recently, 2004, 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 much time advising employers on drafting of various internal policies, regulations, redundancy plans etc. in the manner that would minimize 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 or the professional requirements to be satisfied by the employee;
- differentiation based on parenthood, age 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).A very important exception from the rule of equal treatment was shaped by the case law – it 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.
Under certain conditions, according to several rulings of the Supreme Court, termination of employment with notice may be justified by retirement of employee. Primarily, reaching a retirement age cannot be the only reason justifying serving a notice of termination of the employment contract. The reason of age should be supported by gaining other than work source of income such as retirement pension. The once well established case law is, however, shifting towards the idea that reaching retirement age, even with gaining other than work source of income, can not justify serving a notice on termination of employment.
Interesting cases
There is one set of cases which certainly is interesting from the perspective of age discrimination. 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 vacant 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)
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 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)
Although the Court has based its ruling from 2008.03.19 on prohibition of sex discrimination, it has also included some general remarks in the grounds for its ruling. Namely, it held that in the Court’s view reaching retirement age and acquiring the right to pension do not themselves justify termination of employment with notice because these facts are not related to work. Termination of employment of such employee should refer to reasons concerning either employee or employer. This view is somehow corroborated by the ruling of the Supreme Court where it held that justification of notice by acquiring the right to pension is not a reason connected to employee and therefore the redundancy pay should be granted to the employee (II PK 119/07, ruling of 2008.01.08).
In conclusion, the once well established position that reaching retirement age coupled with acquisition of the right to pension justifies termination has recently come under reconsideration from the perspective of prohibition to discriminate based on age and sex (different retirement ages).