Discrimination and equal treatment in Poland in the work place – newly introduced changes from September of this year

The Act of 16th May 2019 amending the Labor Code Act and certain other legal acts, amends the provisions covering, among other things, discrimination in the workplace, mobbing or the issuing of employment certificates. The Act entered into force on 7th September, 2019 and will contain an open list of reasons for discrimination in the workplace.

Discrimination in the work place

To date, the list of reasons for discrimination in Poland has not been an open list, as, for example, the specific characteristics or types of discrimination were listed. Now, according to the intention of the legislator, the entire list of reasons will be an open list. In the currently applicable Article 113 of the Labor Code, which sounds similar to the one which will be in effect from 7th September, 2019, the phrase "and also as a result of ", which separated the discrimination criterion into the two seperate groups listed below, was omitted:

• employee's personal characteristics,
• characteristics of the employee's form of employment.

The legislator emphasizes that any discrimination in the workplace is unacceptable. This applies to sex, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnicity, religious beliefs, sexual orientation and form of employment (i.e. definite or indefinite period of employment, full-time or part-time employment). The amendment to the Labor Code introduced by the President of the Republic of Poland provides for an open catalog of reasons for discrimination.

Direct and indirect discrimination

According to the Act, direct discrimination exists when, for one reason or another, an employee is or could be treated less favorably than other employees in a comparable situation. Indirect discrimination is a situation where, as a result of a seemingly neutral decision, the application of a specific criterion or a specific action taken, there is or potentially could be, unfavorable disproportions or a particularly unfavorable situation in relation to the entering into or termination of an employment relationship, employment conditions, promotion or access to training, for all or a significant number of employees.

If an employee is discriminated against, he/she is entitled to compensation in an amount not lower than the minimum wage. When determining the amount of compensation, the type and intensity of the discriminatory action and its effects, shall be taken into account. This includes compensation for damage to tangible and intangible items.

Equal treatment in the work place

The law makes a distinction between the terms "discrimination" and "unequal treatment". It should also be noted that not every violation of the principles of equal treatment is discriminatory, which means that not every employee treated differently can file a claim for damages against the employer. However, any discrimination at work is conidered unequal treatment.

The amended Act specifies that all employees should be treated equally when entering into and terminating an employment relationship. Equality should also be maintained with repect to employment conditions, promotions and access to training aimed at improving professional qualifications. Such equal treatment should be applied regardless of gender, age, disability, religion, sexual orientation or form of employment.

To date, the legal situation of persons who suffered unequal treatment in the workplace by their employer was not the same as the situation of other discriminated employees. From 7th September, 2019, the situation will be clearer. In the event of unequal treatment of employees for reasons that cannot be considered discriminatory, an employee may assert their rights through the courts and sue for compensation on the principles set out in the Civil Code.

Due to the lack of relevant regulations, or the inappropriate wording of some of the existing regulations, there are often cases of abuse, which usually have negative effects on the employee. In order to rectify these situations, the President of the Republic of Poland has taken a legislative initiative to protect employees against unequal treatment and discrimination.