I INTRODUCTION

Polish employment law is primarily regulated by the Labour Code of 26 June 1974, which has been substantially amended. There are numerous laws and regulations apart from the Labour Code that address employment law.

Polish law states that certain internal acts issued by a particular employer constitute sources of labour law. This includes collective bargaining agreements as well as other collective arrangements, regulations and policies. The provisions of such internal policies may not be less favourable to employees than the provisions of the Labour Code or other statutory laws.

Labour courts are included in the framework of the common courts in Poland, constituting specialised divisions of such courts.

The State Labour Inspectorate (SLI) is the competent authority to enforce employment laws. The primary tasks of the SLI include the following: supervision and inspection of compliance with labour law; taking legal action in cases related to the establishment of labour relations (reclassification); and prosecuting infringements of employees' rights and other infringements related to the performance of work and legality of employment.

II YEAR IN REVIEW

i Sunday trading ban

As of 1 March 2018, a new act on restriction of trade on Sundays, public holidays and certain other days entered into force. Pursuant to the general rule following from the new law, performing trade and trade-related activities in commercial premises, as well as entrusting a natural person (working on the basis of an employment contract or civil law contract) with trade and performing trade-related activities in commercial premises, is prohibited on Sundays and public holidays. In the case of Sundays, the prohibition is being introduced gradually between 1 March 2018 (starting with two Sundays a month subject to the prohibition) and 31 December 2019. Starting from 1 January 2020, the prohibition will apply to all Sundays except for seven Sundays a year enumerated in the act. In addition, on Good Saturday and Christmas Eve, trade and trade-related activities may be performed in commercial premises until 2pm.

A breach of the restrictions indicated in the act is punishable by a fine of between 1,000 zlotys and 100,000 zlotys. Malicious or persistent breach of the prohibition on trade is a criminal offence punishable by a higher fine or a restriction of freedom.

ii Act on Employee Capital Plans

The Act on Employee Capital Plans (PPK) was introduced in 2018 with effect as of 1 January 2019. Its aim is to introduce an additional pension-saving vehicle. Under the PPK, savings are to be systematically accumulated and paid to participants, in principle after they reach the age of 60. The PPK system is intended to be universal – all entities hiring workers (including employees as defined in the Labour Code, specific types of civil law contractors and supervisory board members who are remunerated for their duties) are required to establish an employee capital plan, with a few exceptions.

Employers are required to (1) enter into agreements with a financial institution pertaining to management and maintenance of the employee capital plan for each entitled individual and (2) pay contributions for each individual (part of contributions will be financed by the employer and the other part will be financed by the individual). The employer's contribution will be 1.5 per cent of the gross income of the given individual (with the possibility of an additional voluntary contribution of up to 2.5 per cent). The state will also contribute to the employee capital plan.

iii Significant changes to the Labour Code concerning monitoring

On 25 May 2018, the new provisions of the Labour Code entered into force, which allow monitoring in the workplace. Video surveillance may be used if it is necessary to ensure safety of employees, protect property, control production processes or keep sensitive information confidential. The surveillance of emails and other types of surveillance may be applied if it is necessary to ensure employee efficiency (full use of working time) and the proper use of work tools. This surveillance cannot violate the privacy of correspondence. The purpose, scope and manner of surveillance should be established in a collective bargaining agreement, employment regulations or in a relevant notice. The provisions also specify that the retention period for recordings is, in principle, three months. After this time, the employer is required to destroy recordings containing personal data.

iv Amendments to the Act on Trade Unions

An amendment to the Act on Trade Unions was introduced in 2018 with effect as of 1 January 2019. It grants non-employees, including civil contractors, the right to establish and to join trade unions. The Act also extends the scope of information that trade unions may demand from employers – in particular, they can request information about business operations and the economic situation of the employer, as well as the structure and expected changes in employment.

III SIGNIFICANT CASES

There were two significant rulings in 2018.

On 14 November 2018 (Kp 1/18), the Constitutional Tribunal ruled that the pending amendment to the Social Security System Act, which was set to significantly increase the social security contributions from highly paid individuals starting from 1 January 2019, violates the Constitution. The amendment was supposed to remove the cap on social security contributions, which applies to remuneration in excess of 30 times the forecast average monthly salary. As a result of this ruling, the cap remains in force. Although the ruling was based on flaws in the legislative process rather than content of the new law, it is not expected that the contemplated changes will be reintroduced in the near future for political reasons.

In a judgment of 7 February 2018 (II PK 22/17), the Supreme Court ruled that seniority may not always constitute a justified reason for pay differentiation between employees. In certain professions, the length of time the employee has been in the role or his or her professional experience plays a significant part in ensuring a high level of quality, for example in complex mental work (e.g., coding or accounting) or in work requiring knowledge of the construction and operation of various types of machines. However, employers should be cautious when determining employees' remuneration using this criterion because it cannot be justified in every profession (even though the law explicitly lists seniority as one of the allowed criteria).

IV BASICS OF ENTERING AN EMPLOYMENT RELATIONSHIP

i Employment relationship

An employment relationship is, in principle, established on the basis of an employment agreement. There are additional bases for the establishment of an employment relationship, in particular appointment or nomination, but they are relatively insignificant.

Polish law defines the employment relationship as an obligation of the employee to perform a certain type of work under the supervision of the employer at a location and time defined by the employer for remuneration paid by the employer. Regardless of the type of contract the parties executed, performance of work on the terms and conditions specified above is always considered employment; in particular, a civil law contract may not be concluded instead of an employment agreement.

The Labour Code defines two major types of employment agreements:

  1. employment agreement for an unspecified period (open-ended); and
  2. employment agreement for a specified period (fixed-term).

Open-ended agreements are offered to employees with whom the employer wishes to have a long-term relationship and are strongly preferred by employees.

A fixed-term employment agreement is also commonly used. This type of agreement provides for a specific duration and termination date (upon which it terminates automatically).

Employment agreements should contain provisions on:

  1. conditions of employment and remuneration, such as type of work, place of performance of work and remuneration;
  2. working time (full-time or part-time); and
  3. date of commencement of work.

It is advisable that additional issues be regulated in the agreement, such as intellectual property and confidentiality. A written employment contract must be executed and signed by both parties.

The terms and conditions of employment may be changed by the parties upon a mutual alteration agreement or by unilateral notice on the alteration of terms and conditions of employment served by the employer. If the employee is not willing to accept the alteration notice, he or she may appeal to the courts or decide to terminate employment.

ii Probationary periods

Polish law provides for the possibility to execute a separate probationary period agreement. This agreement may precede either of the two types of employment agreements discussed above. The maximum probationary period is three months. The employer has no obligation to continue the employment after the lapse of the probationary period.

The probationary period employment agreement may be terminated by either party by notice before the expiration of the probationary period. The notice period depends on the duration of the probationary period and ranges from three days to two weeks.

iii Establishing a presence

A foreign company may employ workers without being registered to carry on business in Poland. It may also use temporary workers provided by an agency or engage individual contractors.

Most of the double tax treaties (DTTs) to which Poland is a signatory are based on the OECD Model Tax Convention and set forth regulations allowing a contractor to be considered a permanent establishment (PE) of the company. A contractor is considered a PE when it acts on behalf of the company, and habitually exercises, in a given country, the authority to conclude contracts in the name of the company. In such cases, the company is deemed to have a PE in that country in respect of any activities of the contractor, unless they are limited to those listed in the DTT that, if exercised through a fixed place of business, would not make the contractor a PE unless it acts merely as an 'independent agent' under the DTT.

The commencement of activity by the foreign company in the form of a PE is treated as the start of business activity in Poland. Therefore, the company would be subject to corporate income tax (in relation to profits derived from activities performed in Poland) and business activity of the company performed through a PE would be subject to VAT in Poland. However, in principle, Polish law requires a foreign entrepreneur conducting business activity in Poland to establish either a branch or a representative office in Poland.

A Polish branch or a representative office of a foreign company becoming an employer is obliged to deduct and pay to the tax authorities income tax advances for each employee who is a Polish tax resident. In principle, it is also necessary to deduct social security dues from the gross amount of the employee's remuneration. If the employees are employed directly by a foreign company, they are responsible for paying the income tax advances during the year by themselves. In certain instances (in particular when the employees are employed by a company from the EU), deduction of social security dues remains the responsibility of the foreign employer. An EU-based foreign employer and an employee may execute an agreement on payment of social security dues on the basis of which the employee undertakes to pay his or her social security dues.

V RESTRICTIVE COVENANTS

An employer may conclude non-compete agreements with its employees. If the non-compete restriction covers the period of employment, compensation does not have to be provided to an employee.

When a given employee has access to particularly important information, the disclosure of which may expose the employer to damage, the employer may execute a non-compete agreement for the period following termination of employment with that employee. The non-compete restriction for a period following termination of employment should include compensation for the employee of at least 25 per cent of his or her previous earnings during the corresponding period immediately preceding the termination of employment.

VI WAGES

i Working time

The basic working time system allows for a maximum of eight hours' work per day and an average of 40 hours a week based on a reference period, which cannot exceed four months, although extensions of up to 12 months are permitted in certain circumstances. Weekly working time (including overtime) cannot exceed an average of 48 hours per week (balanced over the entire period of reference). The minimum daily rest period is 11 hours and the minimum weekly rest period is 35 hours.

According to Polish law, night work encompasses eight hours of work (chosen by the employer) between 9pm and 7am. An employee whose schedule of working time includes at least three hours of night work every day or where at least a quarter of whose working time in the reference period falls during night-time is deemed a night worker. The working time of a night worker may not exceed eight hours if the employee performs particularly dangerous work or work requiring a lot of physical or mental effort.

ii Overtime

For every hour of overtime, an employee is entitled to an additional 50 per cent of his or her remuneration. This is increased to 100 per cent in certain instances, such as if overtime work is performed during the night-time, at weekends or on a public holiday, which is not a usual working day of the employee. Persons in managerial positions are entitled to overtime benefits to a limited extent.

Upon a written request, the employer may grant an employee a release from work for a period corresponding to the duration of overtime worked (instead of the aforementioned overtime compensation). The employer may also grant the employee time off without the employee's request; however, this is at the ratio of 1.5 hours of time off for each hour of overtime worked. The statutory overtime limit is 150 hours in a calendar year. It is possible to increase this within certain limits.

VII FOREIGN WORKERS

Employers are not subject to a legal obligation to keep a special register of foreign workers, although for practical reasons, this information should be easily accessible (e.g., in case of an SLI inspection). There is no legal limit on the number of foreign workers a company can employ.

A foreign national may perform work in Poland if, inter alia:

  1. he or she has a work permit and relevant residence title in the territory of Poland (e.g., a visa) or a (joint) residence and work permit;
  2. he or she has been granted refugee status, temporary protection, subsidiary protection, a permanent residence permit, a residence permit on humanitarian grounds, a permit for tolerated stay or a long-term EU residency permit;
  3. he or she is a citizen of an EU Member State, a citizen of another European Economic Area (EEA) Member State, a citizen of a non-Member State of the EEA who may enjoy freedom of movement on the basis of a treaty executed between the state and the EU and its Member States, a family member of a foreigner in one of the categories listed here (subject to additional criteria); or
  4. he or she has a residence permit for a specified period of time granted to practise a profession requiring high qualifications.

In principle, the work permit may be issued for a period not exceeding three years, although it may be extended. In certain specific situations, the work permit may be issued for five years. Following receipt of the work permit, the foreigner is obliged to apply for an employment visa or a residence permit. Instead of applying for two documents referring separately to work and residence legalisation, a joint residence and work permit may be applied for. The period for which it may be issued may not exceed three years. The permit may be subsequently renewed.

A foreigner employed in Poland is covered by the minimum requirements of Polish labour law, in particular those relating to working time and overtime payments, minimum remuneration, length of holiday leave, health and safety at work, non-discrimination and the rights of employees related to parenthood. The employer is obliged to pay taxes and social security dues for the foreign worker, subject to double tax treaties and any similar international treaties related to social security and to the provisions of the pertinent EU regulations.

VIII GLOBAL POLICIES

Global policies are enforceable only to the extent to which they are compliant with Polish law and only if they are properly introduced. It is legally required that these policies are in Polish. Depending on the contents of the policies, it may be recommended to obtain the employees' consent (familiarisation forms).

Disciplinary procedures are provided for by Polish law and are very formalised in relation to:

  1. types of disciplinary offences (breach of order at work, health and safety regulations, fire prevention regulations or the method of confirming presence at work and excusing absence from work);
  2. procedural requirements (which are very formal and include the right to appeal to court); and
  3. penalties.

Such disciplinary procedures should be addressed in the employment regulations (a specific document described below) and not in global policies or in employment contracts.

In principle, once an employer has 50 employees, it is obliged to introduce internal labour regulations, namely employment regulations and remuneration regulations (unless there is a collective bargaining agreement in force). The employer is also obliged to establish a social fund and issue social fund regulations, unless it has been agreed with the employees' representative or trade unions that no fund is to be established. The employer is obliged to ensure that every individual employee is acquainted with the regulations and policies. The regulations and policies may be made available to the employees in the manner customary to a given employer, including posting on the intranet.

The employer is obliged to agree on the employment regulations and remuneration regulations with trade unions active at the employer's business (if any). Furthermore, some specific provisions of the employment regulations and remuneration regulations need to be agreed with the trade unions or the employees' representatives for their validity (e.g., extension of the reference period up to 12 months). In other cases, these regulations are not subject to the consent of the employees, unless they worsen the terms and conditions of employment.

Polish law prohibits discrimination, sexual harassment and corruption. Such issues can be more specifically regulated in company policies. Neither global policies nor internal regulations issued by Polish companies have to be filed with or approved by any government authority; however, it is required that the copy of the agreement on extension of reference periods to 12 months is submitted to a labour inspector and the inspector is notified of specific working-time systems if they are introduced at the employer's business.

IX TRANSLATION

Employment documents must have a Polish version if the following conditions are jointly met: the employee is a Polish resident when concluding the employment agreement and the work is to be performed in Poland.

Certified translation or notarisation is not required; however, with respect to agreements, regulations, etc., the Polish versions need to be the official versions in the sense that they are executed (signed). Unofficial translations of documents executed in a foreign language are not sufficient.

A parallel foreign language version is admissible, but the Polish version prevails if the employee is a Polish citizen.

However, as an exception from the foregoing rule, if an employee is not a Polish citizen, has been instructed on his or her right to receive an employment agreement or other employment-related document in Polish and requests that the document is prepared in another language (with which he or she is familiar), then the Polish version is not required.

The Polish language requirement is applicable to all employment documents and in particular to employment contracts, confidentiality agreements, restrictive covenant agreements, proprietary information and assignment agreements, internal regulations, bonus or other incentive compensation plans, employee handbooks or other policies, etc.

Documents without the required Polish versions are, in principle, still enforceable (as long as the employee comprehends the foreign language version), but the person responsible for their implementation is subject to a fine.

X EMPLOYEE REPRESENTATION

The two basic forms of employee representation are works councils and trade unions, which are governed by different rules. A works council and trade union organisation may exist at one employer independently from others. In this case, certain issues would need to be separately discussed with the unions and the council (e.g., collective redundancies). Polish law also provides for various ad hoc employee representatives elected for specific purposes in the absence of trade unions.

i Works council

The works council is a body representing the employees of a given employer, employing at least 50 employees. The number of employees is established based on the average headcount during the six preceding months. The employer is obliged to inform the works council of:

  1. the activities and economic situation of the employer and contemplated developments in this regard;
  2. the situation, structure and contemplated development of employment, as well as actions aimed at retaining the level of employment; and
  3. actions that are likely to lead to substantial changes in the work organisation or in contractual relations.

Under certain circumstances the employer may refuse to make some information available to the works council.

The matters specified in points (b) and (c) above should also be subject to consultation with the works council. The council does not have any approval or co-determination rights.

The procedure for information and consultation should be agreed between the works council and the employer. There are no formal rules as to the frequency of works council meetings; however, the employer is bound to inform the works council in the case of any contemplated actions that are statutorily covered by the information procedure, that the employer has agreed to inform the works council of and at the written request of the works council. Any action subject to information or consultation should only be taken following the completion of the process.

The works council members are elected by the employees. Should the average headcount reach 50 employees (calculated in a specific way), a group of at least 10 per cent of the employees may ask the employer, in writing, to organise the election of a works council. The election procedure is established by the employer but should be fair and democratic.

The term of office of works council members lasts four years from the day of the election.

The number of members of the works council depends on the number of employees and is as follows:

  1. three members if there are between 50 and 250 employees;
  2. five members if there are between 251 and 500 employees; and
  3. seven members if there are more than 500 employees.

There are certain advantages for the employees connected with their membership of the works council; in particular, the employer is not allowed to unilaterally terminate an employment agreement while the employee is a member of the works council without the council's consent.

ii Trade unions

Trade unions are established by virtue of a resolution adopted by eligible persons (employees). The trade union acquires legal personality upon registration by the court. Usually, the organisers of a company trade union join an existing nationwide union, which allows them to save on time and formalities, and take advantage of the expertise of experienced union activists. Trade unions have powers that are much broader than those of works councils. Generally, as well as the right to be informed and consulted, the trade unions have co-determination rights in certain areas.

Some of the employer's fundamental obligations towards trade unions are:

  1. the obligation to agree certain internal regulations with the trade union;
  2. the obligation to consult the trade union regarding any collective redundancies;
  3. the obligation to inform and in some cases to consult the trade union regarding the issues related to a transfer of undertaking;
  4. the obligation to obtain the consent of the trade union to termination of the employment agreement of that trade union's officers (as a primary rule, their exact number is dependent on the number of members of the trade union organisation), or to a change of the terms of their employment;
  5. the obligation to obtain the consent of the trade union for termination without notice of employment agreements of employees enjoying special protection (e.g., pregnant employees and employees on maternity leave); and
  6. the obligation to consult the trade union before terminating an employment agreement for an unspecified period or changing the terms of employment of employees employed for an unspecified period (no union approval is needed).

In individual matters, the company trade union organisation has the right and obligation to represent individual employees who are members of the organisation or non-members who give their consent to being represented by the organisation. When taking a position regarding the employer in matters concerning collective rights and interests, the company trade union organisation represents all employees.

XI DATA PROTECTION

The basic rules concerning processing of personal data are set forth in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the General Data Protection Regulation (GDPR)) and in the Act on Personal Data Protection of 10 May 2018, which transposes some provisions of the GDPR to the Polish legal system. There are also specific regulations on processing the personal data of employees and candidates in the Labour Code of 26 June 1974.

i Requirements for personal data processing

An employee's consent for the employer to process personal data is not necessary if the personal data is processed in relation to the employment agreement (with regard to personal data indicated in Article 221 of the Labour Code).

Processing of employee personal data can be based on other legal grounds such as necessity for performance of employment contracts (Article 6.1.b of the GDPR), necessity for compliance with a legal obligation to which the employer is subject (Article 6.1.c of the GDPR) or legitimate interests of the employer (Article 6.1.f of the GDPR). The employer is required to notify employees on the processing of their personal data and to provide them with the information required by Article 13 of the GDPR (e.g., information on the purposes and legal grounds for the data processing, information on data recipients and information on employee rights under the GDPR).

Under the GDPR, employers are obliged to maintain records of data processing activities, to implement appropriate technical and organisational measures to ensure a level of security of personal data appropriate to the risk, and to ensure that an individual who has access to employees' personal data (acting under the authority of the employer) processes it on instructions from the employer. However, there is no obligation imposed on employers to register processing of employees' personal data with the data protection authority (DPA).

ii Cross-border data transfers

With respect to cross-border transfers of personal data of employees, registration of the transfers with the DPA is not required. However, it is required to obtain the DPA's consent for the transfer of personal data, if the destination country does not ensure an adequate level of personal data protection in its territory and if none of the conditions allowing for transfer to such countries, as indicated in the GDPR, are met (e.g., explicit consent of the data subject, necessity to perform a contract between the data subject and the controller or the implementation of pre-contractual measures to be taken at the data subject's request). The consent of the DPA is not required for transfers of personal data to third countries based on EU Model Clauses and for transfers of personal data to US entities that obtain certification of the EU–US Privacy Shield Framework. Transfers of personal data can also take place on the basis of the Binding Corporate Rules approved pursuant to procedures established in the GDPR.

As stated above, the consent of the employee may potentially be one of the instances in which the transfer may be effected without the DPA's consent; however, as it may be questioned whether the consent was freely given by an employee based on the nature of the employment relationship, obtaining the DPA's consent to a transfer of the employees' personal data or implementation of EU Model Clauses and Binding Corporate Rules is considered a safe approach.

iii Special categories of personal data

The processing of special categories of personal data is allowed only in cases explicitly indicated in the GDPR. Employers are allowed and indeed obliged to process particular health information that relates to occupational health. The GDPR introduces the definition of special categories of personal data. They cover data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data processed for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation. Under the GDPR, processing of special categories of personal data is prohibited and allowed only in certain cases, for instance if it is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security, and social protection law insofar as it is authorised by EU or Member State law or a collective agreement pursuant to Member State law providing for appropriate safeguards for the fundamental rights and the interests of the data subject. Processing based on data subject consent is also allowed and it does not require written form of such consent. Processing of personal data relating to criminal convictions and offences or related security measures can be carried out only under the control of an official authority or when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.

iv Background checks

As a principle, unless specific types of jobs are involved, Polish law does not allow background checks on employees, including criminal records or credit checks. The Labour Code specifically lists information that the employer may request from the employee, in particular, date of birth, education, previous employment and parents' names.

XII DISCONTINUING EMPLOYMENT

i Dismissal

There are three general methods by which employment agreements may be terminated in accordance with the Labour Code: termination by mutual agreement; termination with notice; and termination without notice.

Each type of employment agreement may be terminated at any time by mutual consent of the employee and the employer. In general, such terminations are not subject to the requirement to specify the cause for the termination or to consult with a trade union regarding the termination.

Statutory notice periods are the same for the employee and the employer. Payments in lieu of notice are not allowed (except in certain specific instances, when it is allowed to shorten the notice period). It is admissible to unilaterally release an employee from the obligation to perform work with the right to remuneration retained, but only during the notice period.

Termination of an employment agreement for an unspecified period upon notice by the employer requires just cause, which is defined by the courts as a reason that is true, real, specific and important enough to discontinue the employment relationship.

The reasons for termination may occur because of the employee (i.e., underperformance) or the employer (i.e., liquidation or restructuring). The employer has no duty to specify a reason when terminating fixed-term agreements.

If there are trade unions operating at the employer's business, the employer must seek the trade union's opinion regarding the intention to terminate the employment agreement for an unspecified period for an employee represented by such union. Regardless of the trade union's opinion, however, the employer is free to make the final decision to terminate the employment agreement.

The employee who has been terminated has the right to appeal to a labour court. If the labour court finds the appeal well grounded it may, in principle, reinstate the employee in the job (which also involves payment of some compensation) or award the employee damages in an amount not exceeding three months' remuneration for the given employee.

Polish labour law provides for the special protection of employment for a variety of groups of employees. In practice, the most important of them are trade union activists, employees in the pre-retirement period, pregnant women, employees on parental or childcare leave, and employees on sick leave.

In case of termination of employment for reasons not related to the employee, an employer employing at least 20 employees is obliged to pay statutory severance pay on the same terms and conditions as in a collective redundancy (see below).

The Labour Code allows employers to terminate employment agreements immediately without notice in specifically defined situations, such as a serious violation of basic employee duties.

Apart from social security registration issues, individual dismissals are not subject to notification to any government authorities. In respect of individual dismissals, there are no rehire rights. Obligatory offers of suitable alternative employment are only applicable to selected groups of employees. Social plans are not required.

ii Redundancies

Polish law provides for specific rules applicable to termination of employment for reasons not concerning employees, in particular collective redundancies. The provisions of Polish labour law regarding collective redundancy apply if the employer of at least 20 employees intends to terminate – for reasons not attributable to employees – within a period of 30 consecutive days, employment relationships with:

  1. at least 10 employees if it employs fewer than 100 employees;
  2. at least 10 per cent of the employees if it employs at least 100 but fewer than 300 employees; or
  3. at least 30 employees, if it employs at least 300 employees.

If the above limits are not met, the redundancies should take the form of individual dismissals.

In the course of collective redundancies, trade unions should be notified in writing of the contemplated dismissals. Further, the company is obliged to consult the unions regarding the intended collective redundancies. The consultation should be carried out with a view to reaching an agreement. The agreement should be concluded within 20 days and should set out the rules of handling the matters concerning the employees to be laid off (including severance and outplacement packages). If the agreement has not been reached, the company should issue a regulation dealing with the matters that were to be regulated in the agreement (the collective redundancies regulation).

If no trade unions operate within the employer's business the information should be delivered to and the consultations should be carried out with employee representatives elected for this purpose.

A contemplated redundancy is subject to an information and consultation procedure with works councils. The relevant regulations do not impose any formal requirements of such information and consultation procedure.

The company is also obliged to provide two notifications to the local employment office on the contemplated collective dismissal measures. The first notification is to be made simultaneously with the notification of trade unions or employee representatives. The second notification should be made after the consultation process has been completed.

If the company intends to terminate employment relations with at least 50 employees within a period of three months, it is obliged to agree with the local employment office on the scope and forms of assistance (outplacement) to employees who are to be made redundant.

In addition, within collective redundancies the termination of employment needs to be effected individually with respect to each employee – either a notice must be provided or a termination agreement signed with the employee. Payments in lieu of notice are required if the notice is served and the employer shortens the notice period (applicable to cases where the employee is entitled to a three-month notice period, which may be shortened to no less than one month). In the case of signing a termination agreement, payments in lieu of notice (understood as the amount equal to the salary an employee does not earn because of agreeing an immediate or a short-term employment expiration date) are allowed. In the case of collective redundancies, the employer is obligated to provide statutory severance pay. The amount of statutory severance is fixed in relation to a given employee's aggregate employment record with the employer and ranges from one to three months' remuneration for the employee. The maximum amount of the severance pay is capped in 2019 at 33,750 zlotys gross. Although this is not required under the provisions of the law, employers often grant additional compensation related to termination of employment to employees. The categories of protected employees are slightly narrower than in the case of individual dismissals. In respect of collective redundancies, there are certain limited rehire rights. Obligatory offers of suitable alternative employment are only applicable to selected groups of employees.

XIII TRANSFER OF BUSINESS

Poland has implemented Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.2 Under Polish law, the relevant ramifications pertain, in particular, to the sale of an enterprise, a part thereof or selected assets as well as to the lease of an enterprise or premises. The case law of the Polish Supreme Court has specifically confirmed that the transfer of a business may also take place even when no assets are transferred, provided that the business is labour-intensive rather than capital-intensive. This might have a material impact on outsourcing projects, since the transfer of an undertaking could also occur in the event of hiring and changing an external provider or insourcing of previously outsourced tasks.

If the transfer covers the entire business (all employees of the given employer), the transferee becomes liable with regard to the employees for all employment-related obligations that arose before the transfer and the transferor is no longer liable for those obligations. If the transfer pertains only to a part of the employees, both the transferee and the transferor are jointly and severally liable in relation to the transferred employees for the obligations that arose prior to the transfer. Obviously, both employers can and often do agree between themselves on indemnity regulations; however, this does not affect the principles of third-party liability (with regard to the employees).

If there are trade unions operating at the transferor or transferee, they should be notified in writing at least 30 days before the anticipated date of transfer of:

  1. the contemplated date of the transfer;
  2. the reasons for the transfer;
  3. the legal, economic and social implications of the transfer for the employees; and
  4. any measures envisaged in relation to the terms and conditions of employment including working conditions, remuneration and retraining.

If there are no trade unions at either of the employers, a notification of these details should be made in writing to each individual employee of the employer.

Trade union consultation is required if there are any measures envisaged in relation to changing the terms and conditions of employment. A works council should also be consulted about the contemplated transfer (prior to any binding decision being made in this respect), if such a council is established at either the transferor or transferee.

Within two months of the transfer, transferred employees may terminate their employment with seven days' notice. For the employee, termination of employment in accordance with the above procedure shall have the same consequences as those envisaged under labour law for termination of the employment relationship upon notice by the employer.

XIV OUTLOOK

A minimum wage per hour for persons rendering work or services to entrepreneurs under mandate or service agreements has been increased from 13.7 zlotys to 14.7 zlotys as of 1 January 2019. A minimum monthly wage for persons rendering work under employment contracts has also been increased from 2,100 zlotys to 2,250 zlotys.

The governing conservative and socially oriented Law and Justice Party is working on introducing further changes to the restriction on Sunday work in retail trade aimed at the curtailment of the current practices applied by some of the employers, which can be viewed as circumvention of the new law. The pending amendments are expected to reduce the number of admissible exceptions from the ban on Sunday trade.

There are pending legislative changes to the provisions on processing of personal data of candidates and employees to ensure compliance of local laws with the GDPR. It is envisaged that the changes will amend the scope of personal data that the employer may gather from the employee, which is part of the aim to align the existing provisions with business needs. The prospective changes are also set to increase the protection of employee privacy in some areas. In particular, it is expected that retrieving employee criminal records will be forbidden even with prior consent of the employee, subject only to a few exceptions set out in specific sector laws.


Footnotes

1 Roch Pałubicki is a partner and Filip Sodulski is an attorney-at-law at Sołtysiński Kawecki & Szlęzak. A wider team of Sołtysiński Kawecki & Szlęzak's associates has contributed to this chapter both in its initial redaction and the subsequent updates. The authors wish to thank all those contributors and specifically Karolina Nowotna-Hartman and Agnieszka Gałka.

2 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses [2001] OJ L 82/16.