26.07.2019 Labour law

Changes to the Labour Code will increase the protection of employees

On 7 September 2019, the provisions of the Act of 16 May 2019 amending the Labour Code and certain other acts (Journal of Laws item 1043), will come into force.

The amendments mainly relate to equal treatment of employees, workplace harassment, protection of persons exercising parental rights and the issuance of employment certificates, which in practice are to facilitate the enforcement of employee rights.

Changes to criteria pointing to discrimination in employment

The amending act provides for an open catalogue of criteria justifying the recognition of employer’s conduct as discrimination in employment. Therefore, once the amendment comes into force, any unjustified unequal treatment of employees will be considered discrimination.

Pursuing claims arising from workplace harassment

So far, the prerequisite for claiming compensation for harassment was the termination of the employment contract by an employee. However, the amendment will enable the employee to claim compensation from the employer also in a situation where the employee has not terminated the employment relationship.

The aim of the amendment is to protect employees who actually became victims of harassment but did not decide to terminate their employment relationship due to a threat of losing income-earning opportunity. In such situations, an employer which harassed or allowed harassment would remain unpunished because an employee who did not terminate the employment relationship due to harassment could not claim compensation. Making the claim for compensation for harassment dependent on the prior termination of the employment relationship by an employee was also negatively assessed by the legislator because an employee who was a victim of harassment could not effectively claim compensation also when employment relationship was terminated by the employer. The authors of the amending act indicated in justification to it that this practice was often used by employers who, expecting a lawsuit for compensation, had previously terminated the employment relationship themselves, thus avoiding liability for damages.

The protection of employees who are other family members

In previous years, the Labour Code extended the circle of persons entitled to maternity leave and parental leave by a member of immediate family other than father raising a child. An employee – another member of immediate family – is entitled to maternity leave and parental leave in special situations.

The legislator, by amending the Labour Code in this respect, decided to align the protective rights of members of immediate family with those of fathers on maternity and parental leave.  This means that an employee – another member of immediate family – will also be protected against dismissal while taking maternity and parental leave. Also, the employment contract of such person can only be terminated in the event of bankruptcy or liquidation of an employer or be terminated without notice if a trade union representing that person agrees to it.

A member of immediate family who takes maternity or parental leave will also be able to take holidays immediately after the end of such leave.

Deadline to apply for rectification of employment certificate

According to the amendment, an employee will now have 14 days to apply to the employer to rectify an employment certificate. The deadline has been extended from 7 to 14 days. According to the legislator, a longer period is necessary due to importance of the certificate of employment for an employee, in particular as a document confirming the course of employment and necessary to obtain various benefits.

The amending act also provides that if the employer has not issued an employment certificate, the employee will be entitled to a claim for obliging the employer to issue an employment certificate. However, if the employer does not exist or, for other reasons, it is impossible to sue the employer to issue a certificate of employment, the employee is entitled to file a petition with labour court to ascertain their right to receive a certificate of employment.

Sylwia Składzień
TGC Corporate Lawyers

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