Amendments to Poland’s Labor Code are underway, introducing new definitions of discrimination and increasing employer responsibility, easing legal recourse for employees.
Existing Discrimination Regulations
Poland’s Labor Code has long contained provisions addressing discrimination, specifically Article 183a § 1, which outlines prohibited criteria. Employees must be treated equally, regardless of gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, sexual orientation, employment status (fixed-term or indefinite), or working hours.
Direct Discrimination Defined
Currently, direct discrimination, as defined in Article 183a § 3, occurs when an employee is, has been, or could be treated less favorably than other employees in a comparable situation due to one or more of the listed characteristics. The proposed changes maintain a similar definition, focusing on less favorable treatment compared to another employee’s past, present, or potential treatment.
Indirect Discrimination Explained
Indirect discrimination exists when a seemingly neutral provision, criterion, or action results in disproportionately unfavorable outcomes or a particularly disadvantageous situation for employees belonging to a protected group. However, differences in treatment are permissible if objectively justified by a lawful aim and the means of achieving that aim are appropriate and necessary. The definition of indirect discrimination will remain unchanged.
Discrimination by Assumption and Association
The planned amendments introduce definitions for discrimination by assumption and association, which were previously absent from the Labor Code. Discrimination by assumption (Article 183a § 41) occurs when an employee is treated less favorably than another in a comparable situation based on a mistaken association with a protected characteristic. Discrimination by association (Article 183a § 41) occurs when an employee is treated less favorably due to their connection to someone with a protected characteristic.
Other Forms of Discrimination
Current regulations (Article 183a § 5) already recognize certain discriminatory practices. The revised version will expand upon these, detailing additional manifestations of discrimination.
Remedies for Discriminated Employees
Existing law (Article 183d) allows individuals facing discrimination to seek compensation of at least the minimum wage. The proposed changes significantly expand this, granting the right to either compensation or damages. In cases of repeated discrimination, courts can award damages up to three times the minimum wage, based on the severity of the harm.
Scope of Claims: Employees and Applicants
Claims related to discrimination will continue to extend to job applicants who experience discrimination during the hiring process, not just current employees. Employers must be aware of these potential claims and adhere to the new regulations for prospective candidates.
Protection for Employees Exercising Rights
Current Article 183e § 1 protects employees who exercise their rights under labor law, including those related to equal treatment, from any adverse consequences, such as termination. This protection also extends to individuals who support colleagues exercising their rights, with a minimum wage compensation available for violations.
Enhanced Protection and Limitations
The amendments introduce a new principle: protection does not apply to employees knowingly making false claims of discrimination. Employees who have experienced unfavorable treatment due to exercising their rights will be entitled to damages or compensation, at least equal to the minimum wage.
Burden of Proof in Discrimination Cases
In discrimination cases, the employee will only need to demonstrate a likelihood of discrimination, while the employer will bear the burden of proving that no discrimination occurred.
Employer Obligations: Proactive Measures
Employers will be legally obligated to actively and continuously prevent discrimination through preventative measures, detection of violations, appropriate responses, and support for those affected. This obligation is newly formalized in the proposed Article 183g.
