A minor revolution in labour law, i.e. new rules for terminating fixed-term contracts, granting parental leave and making employment more flexible.
By August this year, Poland is required to implement two EU directives regulating legal and labour matters, specifically:
- Directive (EU) 2019/1152 of the European Parliament and of the Council (EU) 2019/1152 of 20 June 2019 on transparent and predictable working conditions in the European Union, which aims to increase the transparency and predictability of employment, thereby improving working conditions for employees; and
- Directive (EU) 2019/1158 of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, which establishes minimum requirements for achieving equality between women and men in terms of opportunities on the labour market and treatment in the workplace. This objective is to be achieved by making it easier for workers who are parents or carers to reconcile their professional and family lives and by encouraging a more equal sharing of care responsibilities between women and men.
In addition, as a result of the European Commission's intervention regarding unjustified unequal treatment in terms of the conditions for terminating fixed-term employment contracts compared to permanent employees, the rules for terminating fixed-term contracts will change.
The Government Legislation Centre's website has recently published the assumptions for the draft amendment to the Labour Code implementing the solutions provided for in the directives and the European Commission's position on the Polish legal system.
So what can we expect?
New rules for terminating fixed-term contracts
It seems that as a result of the planned changes, the biggest revolution will concern the rules for terminating fixed-term contracts. Until now, they have not required justification or consultation with trade unions. Originally, the rules for terminating these two types of contracts also differed in terms of the length of the notice periods. However, in 2016, the statutory notice period for fixed-term contracts was brought into line with the notice periods for contracts concluded for an indefinite period.
As it turned out, however, this was only the first step towards harmonising the rules for terminating employment contracts. The European Commission pointed out that the differences still existing in the provisions of the Labour Code constitute, in its opinion, unjustified unequal treatment.
In view of the above, according to the published guidelines, the proposed changes will include the introduction of:
the obligation to justify the termination of fixed-term employment contracts
trade union consultation on termination, and
the possibility of applying for reinstatement even in the case of a fixed-term employment contract.
The harmonisation of the rules for terminating fixed-term and permanent contracts may result in the former becoming less attractive. It is therefore worth reviewing the organisation's employment policy from this perspective.
Extending the scope of informing employees about employment conditions
For almost 20 years, Polish employers have been required to inform employees about basic employment conditions, such as the applicable daily and weekly working time standards, the frequency of payment of remuneration for work, holiday leave and the length of the notice period for termination of the contract. Employers are also required to inform employees, for example, about the possibility of full-time or part-time employment, and employees on fixed-term contracts about job vacancies.
Once the amendment comes into force, the information obligation will be extended to include additional elements provided for in Directive 2019/1152, such as information on training provided by the employer. Therefore, the information templates used in the organisation will probably need to be updated.
New rules for concluding probationary contracts
The provisions governing the legal framework for concluding probationary contracts have been amended relatively recently. In 2016, the legislator regulated the possibility of re-employing the same employee on a probationary employment contract if:
the employee is offered a job of a different type than the one previously performed; or
the job offered is of the same type as the one previously performed by the same employee for the same employer, but at least three years have elapsed since their previous employment.
However, according to the assumptions of the act implementing Directive 2019/1152, it is planned to allow the re-conclusion of a probationary employment contract with the same employee only if the employee is hired to perform a different type of work.
It therefore appears that offering a probationary period to returning employees will not be permitted. Employers who have been using this solution must therefore be prepared to change their current practice.
The amendments to the Labour Code will also aim to ensure that the probationary period is commensurate with the expected duration of the employment contract and the type of work. With the exception of the case described below, the assumptions in this regard do not mention any extension of the maximum period for which a probationary contract may be concluded. It can therefore be assumed that this will continue to be a maximum period of three months and that the legislator does not plan to extend it, even though Directive 2019/1152 allows for a maximum probationary period of six months.
However, it will be permissible for the parties to the employment relationship to agree to extend the probationary employment contract by the duration of the employee's absence from work. This will apply to cases where the employee is absent from work for justified reasons (e.g. illness) during the originally agreed probationary period.
Parallel employment
According to the assumptions of the amendment to the Labour Code, the new regulation will also include ensuring the employee's right to parallel employment. In principle, this right can be derived from the current labour law provisions. The parties may impose a non-competition clause on the employee. However, they cannot stipulate ‘exclusivity’ and prohibit the employee from taking up parallel employment if it does not conflict with the employer's interests. This would be contrary to the principle of freedom of work.
On the other hand, in practice, employment contracts often contain provisions that interfere with this area. This is probably why the legislator decided to introduce an explicit prohibition on prohibiting an employee from simultaneously remaining in an employment relationship with another employer. The prohibition on exclusivity will cover not only additional employment, but also additional work performed by employees on the basis of civil law contracts.
The published guidelines do not specify what sanctions will be imposed for violating the proposed provisions. However, it is worth reviewing the organisation's standard contracts and existing employment contracts to see whether it will be necessary to make appropriate changes in this regard.
Promoting more predictable forms of employment
The legislator has decided to implement Directive 2019/1152 in order to ensure that an employee who has worked for at least six months (including on the basis of a probationary employment contract) has the right to request a form of employment with more predictable or secure working conditions. An employee will be able to submit such a request once a year. The employer should respond to the employee within one month of receiving the request. The response should also include a justification.
Polish labour law does not provide for the flexible forms of employment referred to in Directive 2019/1152, such as zero-hour contracts or on-demand employment, which do not guarantee employees work. Therefore, the right to request more predictable employment is likely to have a narrower application in Poland than in other European Union countries. At this stage, the draft bill does not indicate that a similar right will apply, for example, to persons employed on a casual basis under a contract of mandate or to temporary workers. We will have to wait for these doubts to be resolved.
Free vocational training
Employees will have the right to free training necessary to perform a specific type of work or in a specific position if the employer is required by law (including internal company regulations) or contract to provide such training to the employee. The training time will be counted as working time and, as far as possible, the training should take place during working hours. This will also apply to training undertaken by an employee on the recommendation of their superior.
Information about the training provided and the rules for participation should be communicated by the employer to the employees.
New rules for granting parental leave
According to the assumptions of the amendment to the Labour Code, the current duration of parental leave is to be extended to 41 weeks (for the birth of one child) or 43 weeks (for multiple births). However, it is worth noting that each parent will continue to be entitled to a maximum of 32/34 weeks of this leave (respectively). The additional 9 weeks of leave granted by the amendment will be a right reserved exclusively for fathers. This right will not be transferable to the mother. If the father does not exercise this right, the leave will be forfeited.
The aim of Directive 2019/1158 is to ensure equality between women and men in all areas. Regulations on work-life balance should contribute to achieving gender equality by supporting women's participation in the labour market, equal sharing of care responsibilities and reducing the gender pay gap. In Poland, parental leave is taken almost exclusively by women – despite the many possibilities for sharing leave between parents, only 0.8% of fathers took advantage of this entitlement in the first four months of 2020.
If the child's father takes leave, he will be entitled to a benefit amounting to 70% of the benefit base.
The amount of maternity benefit for the entire period of parental leave will also be 70% of the benefit base. An exception will be made if an employee submits an application for parental leave within 21 days after giving birth. In this case, the monthly maternity benefit for the period of maternity and parental leave will amount to 81.5% of the benefit base.
Another important change in the Labour Code is the entitlement to parental leave regardless of whether the child's mother is employed (insured) on the day of childbirth.
In addition, Directive 2019/1158 allows Member States to specify circumstances in which an employer could postpone the granting of parental leave for a reasonable period if taking parental leave during the period specified in the application would seriously disrupt the employer's operations. However, this could only take place after consultation in accordance with national law. The employer would also have to provide written justification for such a postponement. At this stage, the proposed amendments to the Labour Code do not address the above issues. It is therefore possible that our legislator will decide not to introduce this solution and allow employers to postpone the date of leave while maintaining the principle that the employer is bound by the employee's request for parental leave.
Care leave
Another change is to be additional care leave of up to 5 days per calendar year, intended for caring for a family member who requires significant care or support for serious medical reasons. As indicated in the assumptions for the amendment to the Labour Code, such leave is to be unpaid.
Under the current regulations, employees are entitled to a care allowance due to the need to personally care for family members if they remain in the same household as the employee during the period of care. The published assumptions do not indicate what will happen to the existing benefit regulations in this area. However, if they remain unchanged, the new care leave may not be successful.
The assumptions are also silent on the current provision in the Labour Code for childcare (up to 14 years of age) for 16 hours or two days. Employees retain their right to remuneration when taking care of their children. If these two institutions operate independently of each other, employees will be able to take advantage of both entitlements and, as a result, an additional seven working days of leave, including two with the right to remuneration.
Employers' organisations have proposed that the possibility of taking care leave should be subject to the employer's consent. At this point, however, it is not yet known whether this proposal will be accepted.
Leave of absence due to force majeure
The amendments to the Labour Code are also to concern the introduction of leave of absence due to force majeure, if an urgent family matter arises due to illness or accident, and the immediate presence of the employee for two days or 16 hours in a calendar year is necessary. The employee will retain the right to 50% of their remuneration (calculated as remuneration for holiday leave).
It should be noted that the current regulations of the Labour Code provide employees with the possibility of taking four days of leave per year on demand without giving a reason. Leave on demand, which has been in the Labour Code for 20 years, is expressed in the employer's obligation to grant, at the employee's request and within the time limit specified by them, no more than four days of leave in each calendar year. The employee decides on the date of taking this part of their annual leave independently and separately from the rules related to leave planning, and the employer is, in principle, obliged to grant this leave. In practice, this leave is often used by employees to deal with urgent personal matters.
It is not known how the introduction of the new solution will affect the institution of leave on demand. Employers' organisations have called for a simultaneous reduction in the pool of leave on demand. This is because unplanned absences affect the predictability of the work process. We will have to wait for answers to these concerns.
Flexible work organisation
According to the draft amendment to the Labour Code, in order to implement EU law, employers will be required to enable employees to make greater use of flexible work organisation aimed at increasing their rights to adapt their work organisation to their individual needs, including through:
teleworking,
flexible working time arrangements (flexible working hours, individual working hours and intermittent working hours),
part-time work.
The possibility of using flexible working arrangements will be available to parents caring for a child up to 8 years of age and carers, i.e. employees providing care or support to a relative or person living in the same household as the employee who requires significant care or support for serious medical reasons.
Rejection of a request for flexible working arrangements will require the employer to provide a written justification.
It is worth noting here that last year's draft amendment to the Labour Code included a proposal to replace teleworking (regular work performed outside the employer's premises) with remote work (including ad hoc work). However, this draft was not ultimately passed.
The currently published assumptions seem to suggest that, despite the proposals to regulate remote work in the Labour Code, such regulation is not to be expected in the near future.
New rules for granting paternity leave
The draft assumptions provide for a reduction in the period during which an employee – a father raising a child on paternity leave – can take paternity leave from 24 to 12 months from the date of birth (adoption) of the child. The proposed changes bring Polish regulations into line with Directive 2019/1158, even though the existing solutions were more favourable to employees in this respect.
Strengthening protection against dismissal for persons exercising parental rights
The implementation of Directive 2019/1158 is also intended to introduce protection for employees exercising their rights under the Labour Code against any unfavourable treatment by their employer or other negative consequences. The protection is also to cover employees who have provided any form of support to an employee exercising their rights under the Labour Code.
The competent authorities for matters relating to discrimination in connection with the exercise of rights under Directive 2019/1158 are to be the Government Plenipotentiary for Equal Treatment and the Ombudsman.
In addition, according to the proposed amendments to the Labour Code, it will be prohibited to make any preparations for the dismissal of employees:
- during pregnancy and maternity leave
- who have applied for leave on the terms of maternity leave, paternity leave, parental leave or care leave, and
- who have applied for flexible working arrangements.
- Another very important aspect of employee rights protection is the indication that in the event of a breach of equal treatment in employment in matters falling within the scope of Directive 2019/1158, the burden of proof will rest with the employer. The employee will only have to prove that a specific breach has occurred.
Other changes related to employees' parental rights
In addition to the above, the draft amendment provides for the following changes:
employers will be able to require employees to work overtime and at night, employ them on a part-time basis or second them outside their permanent place of work only with their consent until the child reaches the age of 8, rather than 4 as was previously the case;
the use of reduced working hours by an employee entitled to parental leave will not affect the length of parental leave;
employees applying for parental rights, as well as for care leave and leave of absence due to force majeure, will be able to submit their applications in paper or electronic form, which is intended to make it easier for parents to exercise their rights.
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The solutions presented in the draft amendments to the Labour Code still leave many unknowns and will certainly be subject to further changes. However, it is worth following them closely, as in many areas they will require active adaptation on the part of employers.