Publication date: January 07, 2025
What is the prohibition of discrimination?
The prohibition of discrimination at work is included in Article 183a) of the Labour Code and in the Constitution in Article 32, which requires equal treatment in all aspects, including those related to work.
Discrimination may be related to;
The above criteria are not socially acceptable and any unjustified unequal treatment of employees is considered discrimination.
Direct discrimination
It concerns the relationship between an employer and an employed employee. It occurs when the employer treats the employee in a different way than other employees, which is caused, for example, by refusing to hire a woman because of her gender. It is also harassment. It occurs on the basis of the prohibited criterion listed in art. 183a par. 1 of the Labor Code, or because of employment for a fixed or indefinite period or full or part-time.
Indirect discrimination
We encounter indirect discrimination in a situation where there are large disproportions in the establishment or termination of employment relationships for all, a significant number of employees or a significant number of members of groups that may be affected by discrimination, e.g. lack of access to training for women.
How can discrimination manifest itself?
Discrimination may manifest itself through violations related to the catalogue of equal treatment, e.g. through refusal to enter into or terminate an employment relationship, unfavourable employment conditions, unfavourable remuneration or omission from participation in training that improves qualifications. A manifestation of discrimination may be the way in which a temporary employee is treated, for example encouraging others to discriminate against him.
It manifests itself in harassment, abuse, and behavior that violates the employee’s dignity, introducing a humiliating and hostile atmosphere. Two conditions must be met for the act to be punishable under the Labor Code – a negative atmosphere and a violation of dignity.
The Supreme Court in its judgment I PSKP 27/21, accepted that there is a significant difference between unequal treatment of employees and their discrimination. Discrimination is exclusively an action directed at people from the group mentioned above.
The case law has assumed that discrimination against the employee is required to claim compensation. Despite the fact that these two principles are closely related, violating them by the employer differs in the consequences that may result from the acts committed. According to the Supreme Court judgment, Case No. I PK 54/17, discrimination means treating an employee worse because of some of their features or characteristics, whereby a comparison is made with other people in the same factual and legal situation. These two concepts are often confused because discrimination is not always the same as unequal treatment of other employees. In the case of unequal treatment, the conditions of the discriminated person are not met, but simply a violation against other employees, not because of gender or race.
Employee protection rights
The Supreme Court’s case law (judgment of 3 September 2010, I PK 72/10, OSNP 2012 no. 1-2, item 4) clarified that the employee should indicate facts that substantiate the allegation of unequal treatment in employment, and then the burden of proof passes to the employer. The employer must prove that they were guided by objective premises (art. 183b § 1 of the Labor Code ). It should be mentioned that according to case law from before 7 September 2019, compensation is due only in the event of discrimination (art. 183d of the Labour Code). In the event of unequal treatment, compensation will be due on the basis of the provisions of the Civil Code. In the later legal status, art. 183d of the Labour Code will apply to obtaining compensation in both cases.
In the event that an employer terminates an employment contract unlawfully, the employee may file an appeal against the termination to the labor court. In the event of an unjustified appeal, the court may rule on the ineffectiveness, reinstatement of the employee, or compensation.
In what cases is an employer entitled to terminate an employment contract without notice?
Pursuant to Article 52 of the Labor Code, the Employer may do so in situations where;
1) The employee committed a serious breach of basic employment duties;
2) The employee has committed an offence that makes it impossible to continue to employ him in his current position, if the offence is obvious or has been confirmed by a final judgment;
3) There is a loss of qualifications necessary to perform work in the position held, through the employee’s fault.
ESG compliance and discrimination
One of the pillars of preparing ESG reports in the field of sustainable development is focusing on relations with employees and checking whether employers respect employee rights and whether the opportunities for men and women in the company are equal. Working conditions and human rights are also important.
The employer must remember that the salary paid to a foreigner cannot be lower than the minimum wage.
The employer must conclude a contract with a citizen of Ukraine and provide him with a translation of the contract that he will understand.
According to Article 94 of the Labor Code, the employer is obliged to;
2b) counteract discrimination in employment, in particular on the grounds of gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, denomination, sexual orientation, as well as employment for a fixed or indefinite period or on a full-time or part-time basis;
– Providing employees with provisions on equal treatment at work in written form.
Employee dismissals due to origin – Legality of actions
REGULATION (EU) No 492/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 April 2011 on freedom of movement for workers within the Union
Article 7
In the event of dismissal of an employee and accusing the employer of discrimination, there is a burden of proof provided for in Article 6 of the Civil Code, according to which the burden of proof of a fact rests on the person who derives legal consequences from it. The burden of proof in such a situation consists in the employee presenting material facts, thanks to which it will be possible to presume that discrimination actually occurred. In order to avoid liability related to this, the employer should present evidence contrary to the presumption in order to prove that the employee was not discriminated against. According to Article 183d) of the Labour Code, a person against whom the principle of equal treatment has been violated is entitled to compensation in an amount not lower than the minimum wage.
In the case law relating to the termination of an employment contract due to a discriminatory reason on the part of the employer, if there is a conflict of claims for compensation under Article 45 and Article 183d of the Labour Code, the employee may claim two types of compensation:
1) for unlawful (discriminatory) termination of employment
2) for compensation for violation of the principle of equal treatment in employment.
It should be remembered that persons working under an employment contract have the same rights as persons of Polish origin, including:
Risk of committing an unlawful act related to discrimination at work – criminal liability
According to the Penal Code, Article 119 § 1 applies, which may refer to an employer who uses violence or makes unlawful threats against a person or group because of their national, ethnic, racial, political, religious affiliation or because of their lack of religious beliefs, shall be subject to a penalty of imprisonment from 3 months to 5 years.
Another provision providing for criminal liability related to discrimination is Art. 123 of the Act of 20 April 2004 on the promotion of employment and labour market institutions, which states that the refusal to employ a candidate for a vacant job or vocational training position is subject to a fine of no less than PLN 3,000 if the refusal is caused by the candidate’s gender, age, disability, race, religion, nationality, political beliefs, ethnic origin, denomination or sexual orientation.
Applicable court rulings
Citizenship cases