New legislation amending the Labor Code and other relevant acts was signed by the President and published in the Journal of Laws. This legislation implements two European Union Directives: Directive (EU) 2019/1158 of 20 June 2019 on work-life balance for parents and carers and Directive (EU) 2019/1152 of 20 June 2019 on transparent and predictable working conditions in the European Union. New provisions will come into force on 26 April 2023.
The amendments to the Labor Code are intended to increase the predictability and transparency of employees’ working conditions, as well as to support and develop the protection and rights of employees in regard of parenthood. They comprise in particular:
- a change of scope of information on working conditions to be provided by the employer to an employee;
- prohibition of limiting employees in regard with additional occupation subject to non-competition clause and/or statutory limitations;
- employee’s protection against dismissal;
- employee’s protection against any adverse treatment resulting from employee’s exercise of any right arising from a violation of the provisions of labor law;
- new rules for conclusion of an employment contract for a probationary period;
- new rules for termination of an employment contract for a fixed period;
- new leave and justified absence for employee;
- changes in regard with parental leave;
- introduction of a flexible work organization.
Further, adoption of this new legislation will result in new obligations regarding changes in employment documentation, which may include:
- new information on working conditions of extended scope;
- new information when an employee works abroad or takes a foreign business trip;
- employment contract;
- internal regulations, such as Work Regulations (Polish: Regulamin Pracy) or other procedures, in particular in regard with new leave/absence for employees or employee’s trainings.
Please see below a list of FAQs related to new provisions of law:
- What modifications are going to be made to probationary employment contracts?
- What are the changes in regard with the content of an employment contract?
- What additional information must the employee receive?
- What information should be provided to an employee before he/she goes abroad to work or on a business trip?
- What about information on working conditions and information connected to work or business trip abroad in regard with employees currently employed?
- Can an employee request change in the employment contract?
- Can an employer prevent an employee from taking up parallel employment (or other type of work)?
- Who covers the cost of mandatory employee’s training?
- Are employees protected from unfavorable treatment following their exercise of a right under the labor law?
- Are there any changes to the rules for termination of the employment contract and protection herein?
- What are the new types of leave/absence that an employee will be entitled to?
- What will be the new length of the parental leave (Polish: urlop rodzicielski)?
- Are there any changes regarding paternity leave (Polish: urlop ojcowski)?
- Is the new form of submission of employee’s motion previewed in the new provisions of law?
- What is flexible work organization?
1. What modifications are going to be made to probationary employment contracts?
The general rule of duration of probationary period up to three months will stay unchanged. Further the parties may establish in the employment contract that the probationary period will be extended by the utilized days of vacations or days of the employee’s other justified leave of absence.
However, under the new legislation, if followed by a fixed-term employment contract, the length of the probationary period will vary:
- fixed-term employment contracts up to six months – the preceding maximum probationary period is one month;
- fixed-term employment contracts from six to 12 months – the preceding maximum probationary period is two months.
These two probationary periods may be extended for one additional month, by mutual agreement of the parties, if it’s justified by the type of work.
Further, under the new legislation another probationary employment contract may be concluded with the same employee if he/she is to be employed for other types of work.
2. What are the changes in regard with the content of an employment contract?
Until now, the employer had to include the following information in the employment contract:
- the type of work;
- the place of performing the work;
- the remuneration corresponding to the type of work, with an indication of its components;
- work time scheme;
- the date of work commencement.
Further, new provisions of law directly indicate the necessity of including in the employment contract, the employer’s address, as well as all places of work of an employee.
Regarding the probationary period employment contract, the parties will be obliged to include:
- the duration of a fixed-term employment contract, which is to be concluded after a probationary period (if the fixed-term contract is to last up to 12 months), as well as any provision on the extension of a probationary period by one month, if it’s justified by the type of work;
- the duration or the end date of the probationary period, as well as, if the parties agree – the extension of a probationary period by justified absences from work.
Regarding a fixed-term employment contract, it will be necessary to specify its duration or the end date.
3. What additional information must the employee receive?
According to the new legislation, the additional information on working conditions, must be delivered to the employee no later than seven days after the employee starts to work. The information should include the new, extended scope:
- daily and weekly length of working time in the applicable settlement period and daily and weekly standard of working time;
- breaks at work due to the employee;
- daily and weekly rest entitlement;
- rules of overtime work and its compensation;
- in case of shift work – the transition rules between shifts;
- in case of several workplaces – the rules for relocation between them;
- components of the employee’s remuneration, as well as cash and/or non-cash benefits other than those indicated in the employment contract;
- the amount of paid leave entitlement, in particular days of vacation or the rules for it being determined and granted;
- rules for terminating employment contracts, including (i) formal requirements; (ii) length of notice period or if it isn’t possible to determine at the time this information is provided -the method for determining the notice period; (iii) time-limit for appeal to the labor court;
- an employee’s right to training, if provided by the employer, in particular the general principles of the employer’s training policy;
- any collective bargaining agreement or other collective agreement applicable to the employee (if there is an applicable collective agreement concluded outside the workplace by collective bodies or institutions, the name of these bodies or institutions should be indicated);
- if the employer did not establish Work Regulations – (i) the time, date, place and frequency of payment of remuneration; (ii) nighttime hours; (iii) applicable manner of confirming the employee’s arrival and presence at work and justification of absence from work.
Further, within 30 days after an employee starts to work, the employer must provide information on the employee’s social security, i.e.: (i) the name of the social security institution where employment-related contributions are to be paid; (ii) information on the protection related to social security provided by the employer, unless the employee chooses the social security institution by himself/herself.
Information specified in the above-mentioned points 1.-5., 7.-10., and information on the employee’s social security may be provided by indication of the relevant provisions of law.
The information may be provided in writing or electronically (e.g.: via e-mail), provided that the information is available for the employee with the possibility of printing and storing it, and the employer has proof of the handoff or receipt.
Also, the employer will be obliged to inform the employee about the change:
- of any of the above-mentioned information, as well as inclusion of the employee in a collective bargaining agreement or other collective agreement with no delay but no later than on
- the date on which the change applies to the employee (if applicable);
- of the address of the registered office (place of residence if applicable) no later than within seven days from the date of the address change.
4. What information should be provided to an employee before he/she goes abroad to work or on a business trip?
Currently, when an employee is delegated to a third country (non-EU) for a period exceeding one month, the employment contract should specify the duration of the work abroad, and the currency in which the remuneration will be paid. Further, the employer is obliged to inform the employee on the benefits due to the employee for working abroad including reimbursement for travel expenses and accommodation, as well as the conditions for the employee’s return to the country.
After the changes enter into force, the employment contract will not have to include the above-mentioned information. However, the employer will be obliged to inform the employee, who is going abroad to work or on a business trip (EU and non-EU countries) for a period exceeding four consecutive weeks of the following:
- country or countries where the work or business trip is to take place;
- expected duration of the work or business trip;
- currency in which the remuneration will be paid;
- cash and/or non-cash benefits related to the work or business trip outside the country, if they were agreed in the employment contract or result from the provisions of law;
- securing or non-securing of the employee’s return to Poland, as well as conditions of securing the return (if applicable).
Information may be provided in writing or electronically (e.g.: via e-mail), provided that the information is available for the employee with the possibility of printing and storing it, and the employer has proof of the handoff or receipt.
Also, the employer will be obliged to inform the employee about the change of any of the above-mentioned information without delay, but no later than on the date on which the change applies to the employee.
5. What about information on working conditions and information connected to work or business trip abroad in regard with employees currently employed?
According to the new legislation, employees who are employed on the date of entry into force of the new regulations are to receive extended information at their own request and within three months. That said, the employer is under no obligation to provide the extended information without the employee’s request.
6. Can an employee request change in the employment contract?
Yes, once an employee is employed for more than six months, he/she may ask for a change of employment contract for an indefinite period or for a change regarding more predictable and safer working conditions, but no more than once a year.
The employer should, if possible, accept the employee’s request. The employer has one month to respond in writing or electronically. If the employer refuses an employee’s request, he must justify the refusal to the employee.
Please note that the employer is obliged to inform his employees on: (i) the possibility of full-time employment; (ii) the possibility of promotion; and (iii) vacant positions.
7. Can an employer prevent an employee from taking up parallel employment (or other type of work)?
No, the employer may only prohibit an employee from working for another competitive entity by concluding a non-compete agreement, with the mutual consent of both parties. This position has long been expressed in the jurisprudence of the Polish Supreme Court and will soon find a place in the Labor Code. Further, the parallel employment (or other type of work) may be forbidden if it results from the provisions of law.
8. Who covers the cost of mandatory employee’s training?
Employers are obliged to cover the costs of an employee’s training if:
- it is necessary for the performance of a specific type of work or work in a specific position; and
- this obligation results from the provisions of a collective bargaining agreement, internal regulation, the provisions of law, the employment contract or an order of the employee’s supervisor.
In addition, this training must take place, to the greatest extent possible, during the employee’s working hours. If training must take place outside the employee’s normal working hours, it is still considered as working time.
9. Are employees protected from unfavorable treatment following their exercise of a right under the labor law?
Yes, currently the principle of equal treatment in employment generally protects employees from unfavorable treatment upon exercising their rights.
Further to the implementation of the EU directives, employee protection is to be extended not only to unequal treatment, but also to any adverse treatment resulting from an employee’s exercise of any right arising from a violation of the provisions of the labor law.
An employee who exercised his/her rights arising from the provisions of labor law (including the principal of equal treatment) and was treated unfavorably, as well as an employee who provided support to another employee in this regard will be entitled for compensation in the amount not lower than minimum remuneration for work.
10. Are there any changes to the rules for termination of the employment contract and protection herein?
Yes, according to the new provisions of law, the employer will be obliged to indicate the reason for terminating a fixed period employment contract, as well as notify a trade union representing that employee of the intention to terminate the employment contract concluded for a fixed period with an indication of reason for termination. The trade union has five days to respond.
The termination of an employment contract with or without notice (and/or even preparation to termination), as well as any other acts with similar effect as the termination of an employment relationship, may not result from any of the following:
- the employee requests a different type of employment contract and/or more predictable and safer working conditions;
- the employee has a parallel employment or other type of work, unless it’s competitive or forbidden by the provisions of law;
- the employee asks for information that the employer is obliged to provide in connection with the performance of work;
- the employee exercises the right to training at the cost of the employer and within working hours;
Also, the employee is protected from the termination of an employment contract with or without notice (and/or preparation to termination), due to the submission of a motion for flexible work organization.
Furthermore, the employer bears the burden of proof to demonstrate that the termination was not based on any of the above-mentioned facts prohibited by the law.
An employee on a probationary period, who suspects that the reason for the termination of an employment contract with notice or the reason for some other act with similar effect to termination is one of the reasons indicated in points 2.-4., and will entitle the employee to submit a motion (in writing or electronically) for indication of a reason for termination of the employment relationship, and the employer will be obliged to respond within seven days.
Also, the new provisions on protection from termination were introduced, which protect an employee not only during pregnancy and leave periods related to parenthood, but also protect an employee who submitted a motion for leaves connected to the parenthood (protection covers specified periods upon submission of a motion and before commencement of leave). This protection covers not only termination but also preparation for termination (regardless of a base). The employer may terminate the employment contract in the above-mentioned cases without notice due to employee’s fault (with the trade union’s consent) or in case of an employer’s declaration on bankruptcy or liquidation. The employer must prove the existence of these causes.
11. What are the new types of leave/absence that an employee will be entitled to?
The upcoming Labor Code provisions introduce a new type of absence from work and leave:
1. Absence from work due to force majeure in urgent family matters caused by illness or accident
The absence allowance due is in the amount of two days or 16 working hours, for which the employee retains the right to 50 percent of his/her remuneration. The employer is obliged to grant this absence on the employee’s motion submitted at the lates on the day of exercising this right.
2. Care leave (Polish: urlop opiekuńczy):
This leave of up to five days is due to provide personal care or support to a person who is a family member or is living in the same household and who requires care or support for serious medical reasons. The following are defined as family members: a son, a daughter, a mother, a father, a spouse. The employee’s motion must be submitted at the latest one day in advance. The employee will not retain the right to remuneration for the period of care leave, but the period of this leave is included in the period of employment, on which the employee’s entitlements depend.
12. What will be the new length of the parental leave (Polish: urlop rodzicielski)?
The duration of parental leave has been extended by nine weeks, i.e.: 41 weeks (birth of one child) and 43 weeks (birth of more than one child). However, according to the new regulation, each employee-parent of a child will be entitled to an exclusive right to nine weeks of parental leave from the applicable amount of leave, and this right will not be transferable to the other parent. The leave may be taken once or in five parts.
Further, extended periods of parental leaves were introduced for parents of children with some disabilities that arose during pregnancy or childbirth, i.e.: 65 weeks (birth of one child) and 67 weeks (birth of more than one child).
Nothing will change regarding the possibility of taking parental leave together with a co-parent. However, it is important to remember that in such a situation the leave will be subject to a respective reduction.
The new amendments also extend the duration of leave when adopting or taking a child for upbringing and introduce new conditions in this regard.
13. Are there any changes regarding paternity leave (Polish: urlop ojcowski)?
Yes. An employee, who is a father, may take a paternity leave:
- until a child is 12 months old; or
- until 12 months have passed since the final decision on the adoption of a child, but until a child is 14 years old.
The period of the leave in the amount of two weeks remains unchanged.
14. Is the new form of submission of employee’s motion previewed in the new provisions of law?
Yes. The new provisions of law introduce new form of submission of various motions apart from the written form. Many motions may be submitted electronically, e.g., via e-mail. This new form includes in particular: (i) a motion to shorten the maternity leave; (ii) a motion to grant a fraction of maternity leave; (iii) a motion for parental leave; (iv) a motion for paternity leave; (v) a motion for child-care leave; (vi) a motion for flexible work organization and others.
15. What is flexible work organization?
The new provisions on flexible work organization allow employee, who is raising a child of up to eight years of age to submit a motion for flexible work organization, which, according to employee’s choice, may refer to (i) an interrupted working time system; (ii) flexible working hours; (iii) an individual work schedule; (iv) a shortened working week system; (v) a weekend work schedule; (vi) reduced working hours. The employer must inform the employee on acceptance or cause for refusal or propose an alternative possible flexible work scheme within seven days from receiving the motion.
The employee who has been granted a possibility of a flexible work scheme may submit a motion for an earlier return to the previous work scheme. The employer must inform the employee on acceptance or cause for refusal or the possible term for a return to the previous work scheme within seven days from receiving the motion.
Further, the new legislation extended the period in which the employee raising a child may not without his/her consent: (i) work overtime; (ii) work during nigh-time; (iii) work in an interrupted working time system; (iv) be delegated outside the permanent place of work. The above-mentioned prohibitions remain enforceable until the child is eight years old, unless the employee consents otherwise.
By Aleksandra Minkowicz-Flanek, Partner, Magda Slomska, Counsel, and Marta Kolarz, Senior Associate, Dentons