Grounds for discrimination

A non-exhaustive list of grounds for discrimination has been set out in the provisions of the labour law. This means that only certain grounds for discrimination are specified as examples in those provisions.

They include: sex, age, disability, race, religion, nationality, political beliefs, union membership, ethnicity, faith, sexual orientation, fixed-term employment or employment for indefinite term, on a full-time or part-time basis.

Should this list lack the grounds for discrimination on which we want to rely, this does not mean that they may not be invoked before a court. Less favourable treatment of an employee on the basis of any other criterion not mentioned here, which is socially relevant, may also be regarded as discrimination.

It should be pointed out, however, that the principle of equal treatment of employees does not preclude differentiation in rights and obligations of employees on account of differences arising from their personal characteristics and differences in the performance of their work. The aforementioned principle may only be infringed upon if the diversification of the situation of employees results from application of an unlawful criterion by the employer.

Equal treatment in the employment relationship

Equal treatment is guaranteed throughout the employment relationship:

1. with regard to the establishment of an employment relationship,

2. its duration (including terms and conditions of employment, promotion, access to training in order to increase professional qualifications),

3. within the scope of termination of the employment relationship.

Equal treatment in employment means lack of discrimination in any manner, direct or indirect, for any reason. Any action consisting in encouraging another person to infringe the principle of equal treatment in employment or ordering a breach of that principle also constitutes discrimination. It also includes harassment and sexual harassment. The definitions of these actions which constitute discrimination are included in the provisions of the Labour Code.

It should be noted that infringement of the principle of equal treatment in employment is considered to be differentiation of the employee’s situation by the employer on one or more grounds, the effect of which is, in particular:

1. refusal to enter into or termination of  an employment relationship,

2. unfavourable determination of remuneration or other terms and conditions of employment, omission in promotion or granting of other work-related benefits,

3. omission in selection for  professional training.

Exceptions to the principle of equal treatment in employment

Exceptions to the principle of equal treatment are also provided for, that is to say, cases where unequal treatment is possible on account of any of the following grounds:

1. The principles of equal treatment in employment are not violated by the following activities if the intended diversification of the employees’ situation aims at achieving a legitimate objective and the actions are proportionate to that objective. These actions may consist in:

• failure to employ an employee due to one or more causes where the type of work or the conditions in which it is carried out are such that the cause or causes set out in this provision is or are a real and decisive occupational requirement for the employee concerned,

• termination of the employee’s terms and conditions of employment with regard to working time, where this is justified by reasons not relating to the employee, without relying on other cause or causes,

• application of measures which differentiate the legal situation of the employee due to protection of parenthood or disability,

• application of the criterion of seniority in order to determine the terms and conditions of recruitment and dismissal of employees, rules of remuneration and promotion and access to professional training, which justifies different treatment of employees on the grounds of age.

2. Actions which consists in reducing existing inequalities in favour of employees distinguished for one or more reasons do not constitute a breach of the principle of equal treatment in employment. These actions may be taken only for a limited period of time and must aim to even out the opportunities of all or a substantial number of the employees distinguished in the said manner.

3. Restricting access to employment on the grounds of religion, faith or belief, where such actions are taken by churches and other religious associations, as well as organisations whose ethics are based on a religion, faith or belief does not constitute a breach of the principle of equal treatment. A restriction may occur where religion, faith or belief are a real and decisive occupational requirement for the employee concerned due to the type or nature of activity carried out by churches and other religious associations and organisations. This occupational requirement must be proportionate to the achievement of the legitimate objective of differentiating the situation of the person concerned. In the same way, employees may be required to act in good faith and with loyalty to the ethics of churches, other religious associations and organisations whose ethics are based on religion, faith or belief.

Right to equal remuneration

The Labour Code guarantees the right to equal remuneration for equal work or work of equal value. Remuneration in this sense includes all the components of remuneration, regardless of their name and nature, as well as other work-related benefits, granted to employees in monetary or non-monetary form.

The principle of reversal of the burden of proof

In cases concerning infringement of the principle of equal treatment in employment, the principle of reversal of the burden of proof applies. This means that the burden of proving that there has been no breach of the principle of equal treatment lies with the employer. The employee only needs to substantiate the event/circumstance, etc. on the basis of which they claim that the principle of equal treatment has been breached. Thus, if an employee indicates facts which substantiate the accusation of unequal treatment, the employer must prove that it was guided by objective reasons.

Compensation

A person against whom an employer infringed the principle of equal treatment in employment is entitled to compensation of no less than the minimum wage determined on the basis of separate provisions. In 2020, the minimum wage is PLN 2 600.

Protection of employees exercising their rights resulting from a breach of the principle of equal treatment in employment

Exercise  of rights resulting from a breach of the principle of equal treatment in employment may not give rise to adverse treatment of the employee exercising such rights. Nor may it give rise to any negative consequences for the employee, in particular, it may not be the reason for the employer’s termination of the employment relationship, with or without notice. The phrase 'exercise of rights' may not be equated only with an employee making a claim against an employer. There is no doubt that this phrase also includes an employee’s activity that leads to confirmation of their existence.

Similar protection also applies to an employee who provided, in whatever form, assistance to the employee who is exercising their rights as a result of a breach of the principle of equal treatment in employment.

 

NAME OF THE ENTITY RESPONSIBLE FOR THE CONTENT OF THE INFORMATION

Ministry of Economic Development, Labour and Technology

Department of Labour Low

email: sekretariat.dpr@mrips.gov.pl