The following article sets out recent developments in Polish employment law.
Constitutional Tribunal ruling – public holiday falling on Saturday
Art. 130 clause 2 of the Labor Code has been deemed contrary to the Constitution and repealed as of October 8, 2012 by the Constitutional Tribunal ("CT") in its judgment (K 27/11) of October 2, 2012. Previously, if a holiday fell on a day off work (such as a Saturday) based on a five day working week, such a day off did not trigger any decrease in the working time. Prior to this ruling, it was an exception to the general rule laid down in the Labor Code that each and every holiday within a reference period which falls on any day other than Sunday reduces the working time by 8 hours (Art. 130 clause 2 of the Labor Code). CT stated that the challenged regulation could have adversely affected the situation of some employees as compared to other employees. The CT judgment reinstates the legal status that was in force before January 1, 2011. However, Three Kings Day (Epiphany), introduced at the same time as this judgement, will continue to be a day off from work. Art. 130 clause 2 of the Labor Code remains a day off. The fact that Art. 130 clause 2 of the Labor Code is no longer in force increases the average number of days off in a calendar year for most employees.
Supreme Court judgment – notification concerning members of a trade union organization
In its (so far unpublished) judgment of June 14, 2012 (I PK 231/11), the Supreme Court states that in order for an employer to meet its obligation to ask a company trade union for information about employees protected by it in individual employment-related matters it is sufficient for the employer to request a list of employees protected by the union only once. Unions are required to supplement and update such a list on an ongoing basis. Whenever the union fails to meet this obligation, the employer will be exempt from its obligation to collaborate with the union in individual employment-related matters. The employer is not required to ask whether named employees benefit from the protection of a given union, nor to give the reason for such request. The Supreme Court states that membership in legally operated social organizations is of a public nature. Consequently, the protection of personal data may not be an excuse for a union to withhold information about employees protected by it. In this judgment, the Supreme Court concurs with current case law, while disagreeing with this year’s well-known Supreme Court resolution of January 24, 2012 as well as with the current case law in the administrative courts.
Supreme Administrative Court ruling – outplacement as employee’s income
In its judgment of August 21, 2012 (II FSK 86/11) the Supreme Administrative Court confirmed that a fee paid by an employer to an HR consulting firm engaged to search for a job for a terminated employee should be treated as the employee's income as part of the employment relation. This applies also when the right to benefit from such outplacement assistance has been granted to the employee pursuant to a settlement between the employer and the employee.
Changes in the way non-employees' accidents at work are evidenced
On August 24, 2012 regulations concerning changes in the way accidents at work of non-employees (including persons hired under civil contracts) are reported came into force. The regulations introduce, among other things, a new format of the accident card.
Paternity leave to be extended
A draft bill to amend the Labor Code has undergone the first reading at the Polish Parliament. The main change to be made is the extension of paternity leave to up to 8 weeks, and provisions allowing fathers to divide the leave into two parts. As a rule, the leave could be used up to the child's second birthday. Currently, fathers enjoy the right to two weeks’ paternity leave, and in principle are obliged to use it by the child’s first birthday.
Employers' notification obligations to be limited
Another draft has been introduced for the first reading at the Polish Parliament. It introduces a number of measures which are beneficial to entrepreneurs, including a lifting of the obligation under Art. 209 of the Labor Code to notify the regional labor inspector and the state sanitary inspector of the place, type and scope of the intended business activities, as well as to keep such information updated.
For further information or to discuss any of the issues raised, please contact Roch Palubicki on +48 (0)61 856 04 14.