Warsaw, 25 November 2022 – HR departments located outside our country, acting on behalf of their employer, are nowadays a fairly common practice, especially in multinational corporations. What does the liability of these individuals look like? The risk of penal liability for minor offences committed by employees operating outside Poland against employees operating in Poland is low, but it can happen. This occurs in cases where the perpetrator acted outside Poland, but the consequences belonging to the elements of a minor offence ensued in Poland.
Employers who are part of multinationals often choose not to hire local HR professionals and manage employee affairs directly from the head office. Moreover, these are not necessarily people who are employees of the employer or have a direct contractual relationship with the employer.
By way of outsourcing, HR matters can be delegated to an external entity, including the HR department of the parent company. This is a common practice, especially for employers belonging to multinationals with few employees in Poland. In such a situation, due to unfamiliarity with the provisions of Polish labour law, there may occur violations classified as minor offences against employee rights.
One of the most common minor offences encountered in the practice of multinationals is the conclusion of employment contracts using an electronic signature that is not a qualified electronic signature. Information on terms and conditions of employment are also not confirmed in writing before the employee is allowed to work. Equally common are failures to keep employee records, in particular negligence in keeping working time records.
The issue of liability risk for such minor offences may therefore arise in the context of a possible fine procedure conducted by a labour inspector or a court. In such cases, it is difficult to give a clear-cut answer, as the rules of liability for minor offences committed abroad which affect employees in Poland are different depending on whether we are dealing with a minor offence with or without criminal consequences.
As the specialists emphasise, it will be crucial to determine the place where the minor offence was committed. This is because even when the perpetrator acted outside the country, in the case of minor offences with criminal consequences, it may turn out that due to the consequences, the minor offence was committed in Poland.
Polish legislation provides for the so-called “many places” rule. Therefore, the place where the minor offence is committed is not only the place where the perpetrator acted or omitted to act, but also the minor offence is committed in the place where the consequences of the act ensued or were to ensue. The place where the consequences were supposed to ensue is nothing but the place where the consequences were expected to ensue, so it must be intended by the perpetrator.
The Polish minor offences law applies to all perpetrators who have committed a minor offence in the territory of the Republic of Poland and on a Polish ship or aircraft while outside Poland. Such a construction makes it possible to hold perpetrators responsible regardless of their nationality, so not only Poles but also foreigners can be held responsible for minor offences against employee rights, but on the condition that the minor offence is committed in Poland.
The risk of penal liability for minor offences committed by employees operating outside Poland against employees operating in Poland is small, but it can happen. The prohibited act is deemed to have been committed at the place where the perpetrator acted or omitted to take an action, which the perpetrator was under obligation to perform, or at the place where the criminal consequences ensued or were intended by the perpetrator to ensue.
Thus, there is a theoretical risk of liability for minor offences with criminal consequences, where the perpetrator acted outside Poland, but the consequences belonging to the elements of a minor offence ensued in Poland. However, minor offences with criminal consequences are not numerous, and the cases of so-called “distance” minor offences (where the perpetrator’s act or omission takes place in the territory of our country and the consequences ensue abroad, or where the act or omission is committed outside the territory of the Republic of Poland and the consequences ensue in the territory of Poland) and “transit” minor offences (where both the place of conduct and the place of consequences do not occur in the territory of Poland) are merely exceptions.
As a general rule, minor offences against employee rights do not entail criminal consequences, which means that penal liability for them can be incurred by the one who acts in the territory of Poland and not by the one who acts outside Poland. Liability for a minor offence without criminal consequences committed abroad requires a specific legal basis.
Although there are different positions on this issue in the doctrine, the prevailing view is that liability for a minor offence committed abroad is specific, i.e. that it cannot be extended by way of interpretation. The lack of a specific basis for a foreigner’s liability for a minor offence committed abroad even to the detriment of a Polish citizen must lead to the conclusion that Polish jurisdiction is excluded in such a situation. Due to the fact that there are alternative interpretations of this problem, the answer to the question of penal liability in employment cases committed by foreign HR professionals is not simple and each case should be considered individually.
In 2021, labour inspectors carried out more than 55,000 inspections, of which more than 30 per cent were initiated as a result of employee complaints. More than 600,000 cases of labour law violations were found. On the other hand, police data shows that in 2020, 640 proceedings under Article 218 for violation of employee rights were initiated and 1,113 criminal offences were found.
By Agnieszka Nowak-Błaszczak and Arkadiusz Matusiak, Counsels, Wolf Theiss