Polish law restricts employers from changing employee tasks without proper procedures or justification.
Change Notice: What Is It?
An employer may change an employee’s duties through a change notice modifying work conditions and pay, or by temporarily assigning other duties for no more than 3 months. The change notice involves multiple conditions, while temporary assignment is simpler to implement.
Similar to terminating an employment contract, an employer must justify changing work conditions and consult with trade unions. An employee may refuse the proposed conditions, leading to contract termination at the end of the notice period. The employee doesn’t need to accept the conditions; silence constitutes acceptance unless refusal is explicitly stated.
Temporary Assignment of Other Duties
Changing employee duties without a change notice is possible when assigning, based on justified employer needs, other work than specified in the employment contract for a period not exceeding 3 months in a calendar year.
Such temporary assignment cannot result in reduced pay and must match the employee’s qualifications. If these conditions aren’t met, it cannot be considered temporary assignment, and a change notice must be served.
Effects of Exceeding the 3-Month Limit
Temporary assignment cannot exceed 3 months in a calendar year. Assigning other work for a longer period requires either employee acceptance or formal adjustment of the employee’s status through an annex to the employment contract specifying new duties and pay, or through a change notice.
The Supreme Court ruled that if after the 3-month period the employee continues performing these other duties and accepts this situation, it can be considered an implied agreement to change work conditions.
Calculation of the 3-Month Limit
Regulations allow temporary assignment for 3 months in a calendar year, theoretically allowing up to 6 months of assignment spanning year-end. However, an employer cannot pre-assign temporary duties for 6 months.
The Supreme Court confirmed in a 2019 ruling that “a period not exceeding 3 months in a calendar year” could encompass consecutive periods totaling 6 months (October 1 to March 31 of the following year) without violating the law.
Appropriate Qualifications – Definition
An employee cannot be assigned arbitrary duties, only those for which they have appropriate qualifications. The Supreme Court clarified that qualifications include not just formal education and experience, but also personal traits, psychological predispositions, and physical ability to perform specific tasks.
Temporary Assignment – Violation of Employee Dignity
Employers must remember that temporary assignment of other duties cannot be used to discipline employees by temporarily transferring them to positions well below their qualifications.
The Katowice Court of Appeal ruled that assigning work inconsistent with an employee’s qualifications without justified organizational, technological, or employer needs may constitute a violation of the employer’s obligation to respect employee dignity, especially if it demonstrates intentional, conscious, and malicious intent to humiliate and discredit the employee.
Justified Employer Needs
Regulations permit temporary assignment of other duties only in justified cases, requiring individual assessment of each situation.
The Supreme Court emphasized this is possible only when justified by objective employer needs. Temporary assignment can serve purposes such as preparing for proper legal actions or justified organizational changes, especially when the employer is aware of special employee protections (such as union activists or council members) requiring additional time to obtain proper consent for a change notice.
Can an Employee Refuse Temporarily Assigned Duties?
Polish labor law does not provide a special procedure for refusing temporarily assigned duties. If assignment meets the conditions of Article 42 § 4 of the Labor Code, refusal may be considered a serious violation of basic employee obligations, potentially leading to termination without notice.
However, the Supreme Court allowed for refusing to perform temporarily assigned duties if they don’t meet the conditions of Article 42 § 4. In such cases, a change notice would be required, and since the employer didn’t issue one, the working conditions remain unchanged.
Improper Temporary Assignment – Employee Claims
Improper temporary assignment alone is not grounds for claims. The Supreme Court noted that if an employer violates Article 42 § 4, the employee has no claims for unjustified or unlawful definitive or change notice termination.
An exception exists if refusal to perform such work led to termination or dismissal. The dismissed employee would need to prove that the employer violated Article 42 § 4 by lacking justification, assigning duties without proper qualifications, exceeding the 3-month period, and then terminating or dismissing the contract due to refusal.
