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2021-10-27

The first draft of the Polish Act on protection of whistleblowers, was published recently on the website of the Government Legislation Centre (RCL). Under the forthcoming regulations, new obligations will be imposed on employers. Some will have to adjust to them still this year.

The new act will implement the EU Whistleblowers Directive No 2019/1937 into the Polish legal system and, according to the calendar outlined by the Directive, should be implemented into the Polish legal system at the latest from 17 December 2021.

According to the regulations, employers hiring 250 people or more are required to introduce the internal regulations and tools provided by the act as early as 17 December 2021. On the other hand, entities hiring fewer than 250 people will only be required to comply with the provisions of the act from 17 December 2023.

The new regulations are to apply to both: persons employed under an employment relationship and persons working under civil law contracts.

The draft also provides that entities hiring less than 50 persons will be able to apply the provisions of the act on a voluntary basis. The exception is made for the entities in the financial sector, which will be obliged to apply the provisions of the act regardless of the number of employees working at the company.

The protection granted to the whistleblowers is one of the most important part of the act. This includes the prohibition of their unfavourable treatment - in particular through refusal of employment, termination or dismissal or reduction of remuneration. If such situations arise, the employer will be obliged to prove that there were objective reasons for the unfavourable treatment of the whistleblower.

Moreover, employers will be obliged to introduce the so-called internal notification regulations, specifying, i.a. the manner and procedure for making notifications. The content of the regulations will have to be consulted with the company’s trade union organisation, or in its absence - with employees’ representatives selected for this purpose. The regulations will come into force two weeks after being announced by the employer.

Whistleblowers will also be able to use an external reporting procedure, e.g. by reporting a violation to the Polish Ombudsman (Rzecznik Praw Obywatelskich), or make a public disclosure, for example to the press.

The draft law provides for criminal sanction for persons reporting false information. In all the above cases the penalty is a fine, restriction of freedom or imprisonment for up to three years.

This is only the first version of the draft, but taking into account that there is little time left until 17 December 2021, i.e. less than two months, it is worth following the legislative work and preparing for the implementation of the new regulations.

2021-04-21

Since the beginning of this year, following the UK's exit from the EU, employers who send workers to or from the UK no longer enjoy rights under the EU's freedom to provide services and freedom of movement, limiting work mobility. What exactly does this mean for posting businesses and will it involve additional difficulties?

 

Trade and cooperation agreement

On 24 December 2020 the European Union and the UK negotiated a Trade and Cooperation Agreement (TCA) to govern cooperation after Brexit.

Three months after the rules for its continued operation have been agreed, the consequences of this historic event raise a number of issues, including the legalisation of employment and labour law. One particularly important area affected by Brexit is the rules on business travel and the posting of workers.

Continued residence permit after the transitional period

Until the end of the transitional period, the stay of UK citizens residing or working in Poland was legal. During this period, these persons could also apply for a dedicated residence permit. Such permit is valid for 5 years and also entitles to work in the territory of the country.

In other cases, e.g. when the temporary residence permit expires, citizens of the United Kingdom or their family members can legally perform work in the territory of Poland in accordance with general principles concerning third-country nationals, i.e. after obtaining an appropriate residence permit and a work permit or a seasonal work permit.

In terms of entry into Poland, after the United Kingdom's withdrawal from the European Union, its citizens are also bound by the same rules of entry into the Schengen territory as citizens of other third countries.

The TCA does not contain provisions regulating the rules of posting British workers to the EU, or vice versa. However, it does include the possibility of natural persons temporarily residing within the territory of the Union in connection with the provision of services, e.g. in the framework of an intra-corporate transfer or the dispatch of persons performing work in the framework of cross-border services. Nevertheless, as a general rule, the exercise of work within the EU will require an appropriate authorisation.

Social security

The TCA also contains a number of provisions relating to the coordination of social security systems which aim to protect the rights of people moving between the UK and the Union after 1 January 2021.

This therefore applies to people who are legally resident in the EU or the UK after 1 January 2021 and whose social security situation is not limited to one country - including posted workers. The regulations also cover their family members and dependants.

The regulations on the coordination of social security systems also apply to health care. While additional requirements may be applicable under national immigration legislation, the TCA ensures that the country of insurance reimburses medical expenses to the country of residence. The same rules will therefore apply in this respect as before. These apply i.a. to persons moving for professional purposes.

As far as posted workers are concerned, as a general rule, they may be covered by the social security system of the sending country for a period not exceeding 24 months. However, the regulations in this subject are currently undergoing modifications in the European Parliament.

Member States may request, after prior notification to the Commission, that the continue to be covered by the social security system of the sending country in its current form. During this extended period, posted workers should continue to pay their social security contributions in the sending country, but the country concerned may decide to shorten the period.

2020-03-26

Limit of three days as to inform the employer on being under quarantine, remote work, personal data of employees and candidates for work. All of this reviewed in the context of the COVID-19 epidemic. We have prepared a set of answers to the most frequently asked questions of employers – updated as of 25 March 2020.

 

Q1.           What are the employee’s obligations towards an employee if he/she has crossed the border and therefore has been directed to mandatory quarantine?

 The employee should immediately inform the employer about the quarantine he/she is subject to. The Regulation introducing the state of the epidemic[1] indicates that the employer should be notified 'remotely' via communication tools. Nothing stands in the way to provide such information by text message or e-mail.

 Q2.           What obligations do employees have when the quarantine is over?

 The employee should remember to provide the employer with a written statement that confirms he/she was under quarantine. This duty has to be fulfilled within three days after the quarantine ends. An example of statement is available on the Social Insurance Fund (ZUS) website. Similarly, information in this respect should be submitted electronically. It is recommended the employer collects such statements as to ensure overall correctness having in mind future settlements, inspections and records.

Q3.           What changes are envisaged by the amendment to the Regulation introducing a state of epidemics[2] with regard to the quarantine obligation?

The amendment provides that as of 27 March 2020, employees performing their professional activities in Poland or in a neighbouring country, will have to undergo a 14-day quarantine. The amendment removes so far existing exception stipulated for this group of persons.

Another change is that since 27 March 2020, an employee crossing the border in order to perform professional activities in Poland or in a neighbouring country, may apply for a certificate which confirms that they are subject to a mandatory quarantine. Such a document will be issued by the competent sanitary inspection authority at the employee's request.

To sum up, as of 27 March 2020 exempted from the quarantine obligation will be exclusively sea and aircraft crews, drivers of international transport, soldiers and Police, Border Guard, Fire Brigade and State Protection Service officers.

Please note that a sanitary inspector competent for the place of residence or stay of a person subject to the quarantine may fully exempt him/her from the obligation to undergo quarantine or shorten its 14-day duration, if there are any justified reasons.

Q4.           Is it possible to oblige an employee to take a leave if he or she is a roommate of person being quarantined?

You cannot oblige an employee to take his/her current leave. However, if the employee is able to work, then he/she can be commissioned to the remote work. Also the outstanding leave may be granted regardless of the employee’s consent.

Q5.           Is the employer obliged to adapt the employee's workplace to remote work that is performed from home, e.g. by providing desk lamps, additional monitor and other IT equipment, and to pay or participate in the costs of Internet connection (if the existing one is too slow)?

Currently there is no such duty, but it can be implemented by the employer and serve as a good practice. It is recommended to consult a tax advisor if you wish to participate in related fees or costs.

Q6.           While recruiting a foreign employee (EU citizen) will we encounter obstacles related to closing the border / quarantine obligation?

The EU citizen employee must demonstrate that he/she is working in Poland (an appropriate letter from an employer is required). After crossing the border he/she will be subject to a quarantine.

Q7.           Is the employer obliged to provide personal protective equipment, disinfectants etc. in case of remote work performed from home?

There is no such obligation.

Q8.           While recruiting, can the employer ask whether the candidate was abroad, had contact with someone who came back from abroad, or is he/she under quarantine?

Yes, you can. It is the employer's duty to ensure safe and safety work conditions. The proportionality and data minimization principles are particularly important here. The employer should require information related to health only to the extent necessary to counteract COVID-19, at the same time taking into account the rules arising from the Labour Code.

Q9.           Is it the employee's duty to inform the employer (or is it the employer's right to ask) where exactly the employee performs remote work?

Yes. The employer instructs an employee to perform work in a specific place, e.g. at home. The employee may not individually change this place. Working remotely is not possible if the employee has no conditions at home to work. In such a case the employer can indicate another place. If this is not possible, the employer will be able to require the employee to come to work or will release the employee from the obligation to perform work.

 Q10.        Would it be illegal to check the temperature before entering a building?

It would not be if it is justified by the circumstances of the case and is carried out in accordance with the rules arising from the Labour Code.

 

Co-authored by Natalia Nawrocka



[1] Regulation of Ministry of Health on introducing the state of epidemic of 20 March 2020 (O.J. 2020, item 491).

[2] Regulation of Ministry of Health amending regulation on introducing the state of epidemic of 24 March 2020 (O.J. 2020, item 522).

2020-02-18

Recently we have celebrated Saint Valentine's Day what gives a great opportunity to consider whether “love contracts” between employees can work under Polish labor law and be included in employees’ records. 

The workplace is almost a second home to countless employees. Inevitably, long working hours foster romantic relationships with colleagues. When we enter the workplace, the boss is legally entitled to manage our daily working routine, evaluate our work performance, and assign tasks, but cannot control or prohibit dating with an officemate or next-door colleague. To be clear, the employer is not entirely helpless in this area. If an employee performs poorly and neglects duties because “love is in the air,” or the relationship severely hinders the normal work process, then the employer can penalize the employee under the rules provided in the Labor Code or consider terminating their employment contract. On the other hand, a Polish employer might also consider applying the useful tool called a “love contract,” also known as a Cupid contract or consensual-relationship agreement, which appears to be commonly accepted and respected in US legal practice. This idea might be of help when things get messy—or to say the least, complicated—between former lovers. A Cupid contract may serve as evidence in litigation and possibly offer some protection against sexual harassment claims.

"We, the undersigned, agree as follows:”

The key idea of the Cupid contract involves mutually agreed statements provided by employees in an office romance, where they establish the terms and conditions of their relationship with regard to their daily work performance. First of all, both “partners in crime” should promise that their private relationship will not interfere with their assigned duties or the quality of the tasks they perform, that their projects and work commitment will remain the same, and that they will maintain the professionalism required at the workplace—also if the relationship breaks down. Another suggested clause is for the employees to declare that they are familiar with the company’s policy against sexual harassment (and this policy can be incorporated into the love contract). They may also state that as of the time they are signing the contract, there have been no abusive acts such as harassment, threats, intimidation, stalking, or physical violence. It should be made clear that neither party was forced to enter into the relationship as a result of organizational dependence, i.e. that the affair was established and continues with mutual consent.

The document may be addressed to the employer and must be signed by all parties involved. There is nothing preventing inclusion of more detailed provisions suited to the particular situation and the specific work environment. These could be for instance a declaration that neither party will interfere or decide on promotions, bonuses, pay increases, or working conditions of the other party, and that the transparency and equal treatment policy will apply to both parties. At this point it would also be handy to lay out the company’s guidelines and internal rules governing business relations with clients and colleagues (e.g. no public displays of affection). Additionally, when an affair arises between employees assigned to different teams or departments, it would be a smart idea to establish rules for the flow of confidential information, if necessary. Having in mind the human nature of falling in love, looking ahead, it may be helpful to include a statement acknowledging that ex-partners will respect the right of the former partner to date another employee.

It is also possible to include a declaration that the employees will not file sexual harassment claims if the relationship turns sour, and the Hollywood rom-com twists into a melodrama. However, such a provision will not completely foreclose court proceedings, but should serve as a polite suggestion to refrain from seeking revenge by initiating litigation. Daily practice provides numerous examples of schemes where a dumped, heartbroken employee decides to sweeten the pill and take revenge on an old flame by alleging sexual assault. In this dramatic scenario, the employee tries to demonstrate that the courtship and sexual relations were in fact unwelcome, and “consent” was granted under duress because of fear of dismissal, possible troubles with promotion, or discrimination. A Cupid contract may serve as solid evidence against such speculations and protect both the employer and the employee from liability.

Is Polish labor and data protection law ready?

A Polish employer wishing to protect itself against the risk of being accused of abuses occurring in the workplace may consider following the Cupid contract trend. But the question of whether to introduce a practice of collecting written statements revealing private affections between employees should be carefully analyzed. Certainly, any such agreements would be made only for the purpose of regulating the situation in the workplace, and only essential data should be processed due to the purpose-limitation and data-minimization rules in the General Data Protection Regulation. Therefore, a separate analysis is essential to determine whether the employer's possession of information on employees’ intimate relationships suits the purpose of preventing sexual harassment (as well as other legitimate purposes such as furthering performance of the employer’s other duties, e.g. combatting workplace harassment, developing social norms, and especially respecting the dignity and other personal rights of employees).

For this reason, when determining the final wording of a love agreement, data protection law must be considered, along with the employer’s interest. Such a statement, suitable and tailored to the Polish legal environment, should be included in part B of the employee’s personnel files, as it potentially concerns the individual’s employment history. Information on an intimate relationship with another employee naturally entails disclosure of “special” personal data, which includes data on sexual orientation. Under the Labor Code, processing of such data is permitted only if the employee provides such information at his/her own initiative. Disclosure of such information to the employer is voluntary, and thus the employer cannot under any circumstances force a couple to sign a Cupid contract. Considering the possible adoption of this or a similar solution, the data protection aspects must be carefully examined, as the requirements imposed by EU law are challenging.

Up-to-date employer?

However the employer catches wind of an office fling, it does not change the voluntary nature of such love pacts. As already pointed out, the employer cannot force a couple to sign such a statement, although it can certainly encourage them to do so and explain the benefits it brings to the parties (with protection against unfounded accusations being the most persuasive). It is also a win-win situation for the boss. An open-minded employer supportive of dating employees may be perceived as an attractive and up-to-date firm. Such an attitude, rather than throwing up roadblocks, can create a positive brand image. While adopting a romance-friendly attitude, an up-to-date employer should act in a way that truly respects and facilitates employees’ choices, if it wants to be perceived as competitive on the current labor market. Millennials in particular expect great flexibility in how they perform their daily work.

Not everyone is a fan

Not everyone supports the notion of involving the employer in the knowledge that employees have been struck by Cupid’s arrow. Some find it too intrusive and devastating to employees’ right to privacy. Employees may not be eager to confess, especially if it is a secret affair and they are married or in other relationships. Difficulties abound if employees oppose the employer’s proposal to sign a love contract. Certainly it will cause awkwardness in their relations. Moreover, introducing the practice of signing love contracts, suggesting that the employer condones office romances, can be perceived as encouraging situations giving rise to conflicts of interest within the workplace. Last but not least, the HR department may be reluctant to act as the “morality police” and assume the additional duties of handling Cupid contracts.

Food for thought

The idea of love contracts protecting the employer’s interests against possible abuses and allegations from employees, although not flawless, is still worth considering. Whether Cupid contracts become commonly used under Polish law remains to be seen. Today’s labor-market trends show the importance of creating a positive and employee-friendly image of the company, suggesting that dating employees should be embraced rather than dismissed. The debate on consensual love contracts indeed offers a great opportunity for HR departments to review their existing internal anti-discrimination rules. Also, a legal check is needed to verify that the employer is duly combatting all forms of sexual harassment and discrimination in the workplace. Finally, it should be stressed that although Cupid contracts can mitigate the risk of sexual harassment claims, they cannot take the place of an effective sexual harassment prevention program.

 

by Natalia Nawrocka

2018-06-13

monitoring w miejscu pracy

As of 25 May 2018 the new provisions of the Labour Code are in force, which regulate surveillance at place of work and new obligations of the employer related thereto.

Video surveillance can be used in order to ensure safety of employees, security of property, control over manufacturing process or keeping confidential information, which if disclosed could expose the employer to damage. The surveillance of emails and other types of surveillance can be used, if it is necessary to ensure such organisation of work which enables full use of working time, or proper use of work tools or equipment entrusted to the employee.

The legislator has also introduces provisions ensuring protection of personal interests, in particular confidentiality of correspondence and privacy of employees, among others by prohibiting surveillance in wash rooms, canteens, locker rooms or premises used by trade unions.

The new provisions also impose certain new obligations on the employers. This concerns first and foremost introducing to the workplace regulations (or collective bargaining agreement) provisions setting out the purpose, scope and manner of surveillance.

This obligation concerns also these employers, who are not obliged to adopt workplace regulations – such employers should address these issues in an internal announcement. Employees should be also informed two weeks in advance about planned launch date of surveillance.

Furthermore, the notification obligations extend to all new employees, as well concerns visibly designating premises in which surveillance is carried out.

The new provisions determine how long can the employer keep the records of surveillance and what should be done with them.  

The new regulation is relevant, because it specifically addresses the issue which for number of years was present in day to day practice and frequently caused practical difficulties. Simultaneously, to the large extent, the new provisions are coherent with good practices of employers concerning surveillance at the place of work.  In connection with implementation of the new regulation, the employers are obliged to update the workplace regulations or to carry out the aforementioned information obligations.

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We discuss the current labour law, legal judgments and interpretations issued
by the National Labor Inspectorate and the Polish Ministry of Labour and Social Policy.

 

We follow and comment on legislation and refer to the current problems
in the field of Polish labour law.

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