Social security contributions in Poland are significant, particularly in the case of highly paid managers. As a result, it is common practice for managers to perform their duties as self-employed persons under management contracts. A recent Supreme Court decision confirmed that management contracts can still be performed by self-employed managers and that such business activity constitutes a basis for social security insurance if the manager is not a management board member.
In a recent judgment concerning an employment agreement concluded with a pregnant woman, the Supreme Court stated that the actual and real performance of an employment relationship is decisive for determining whether the parties actually concluded an employment contract. Entitling a document 'employment agreement' and having it signed by the parties does not determine its legal status – rather, it is crucial that work is performed on the basis provided for in the employment contract.
The Supreme Court recently ruled that an employee's breach of the obligation to obey an employer's instructions constitutes a violation of the employer's intangible interests. The court explained that irrespective of the working time system in which an employee is employed, he or she is bound by an employer's instructions concerning work, unless they are against the law.
The Act on Posting Employees within the Framework of the Provision of Services recently entered into force, guaranteeing an appropriate level of protection for posted employees. In particular, the act determines the terms and conditions of employment, as well as the principles of administrative cooperation between Polish authorities and EU member states. The act also introduces obligations for foreign employers that post employees to Poland.
The Supreme Court recently ruled that an employee was entitled to damages for unlawful termination of employment with notice not exceeding the salary of his statutory notice period, even though it had been contractually extended by the parties. This provision does not apply if the parties to the contract have agreed that an extended notice period be included when calculating damages for unlawful termination.
The recent amendments to the Labour Code made long-expected changes regarding fixed-term employment contracts. The amendments aim to eliminate the abuse of fixed-term contracts by employers. As the interim regulations are still relatively ambiguous, employers should carefully examine each case alongside the provisions of the Labour Code, which may govern the particular situation differently from the newly introduced provisions.
The Supreme Court recently ruled that a management contract rather than employment status is the legal basis for calculating social security contributions for managers who are registered as self-employed and have management contracts with a company in which they are board members. The decision establishes a legal principle under which members of management boards cannot enjoy the favourable social security benefits available to self-employed persons.
The Constitutional Tribunal recently ruled that Article 2(1) of the Trade Unions Act – which grants the right to establish and join a trade union to employees only and not to other persons performing paid work – was unconstitutional. The judgment does not mean that this section of the act has lost its binding force, but it should result in its immediate modification.
In a recent judgment the Supreme Court ruled that in order to assess whether a subsidiary had breached the principle of equal treatment in employment, the circumstances of its employees could be compared to those of employees of its parent company. The judgment also confirmed the court's position on the difference between unequal treatment and discrimination in employment.
The European Court of Justice recently ruled that the Labour Code provision regarding notice periods applicable to fixed-term employment contracts infringed the requirement to treat fixed-term employees as favourably as permanent employees if their working conditions are comparable. The cabinet recently presented a bill that proposes to eliminate the Labour Code's discriminatory provisions.
The Ministry of Labour and Social Policy has recently acknowledged the need to amend the temporary agency regime. If the envisaged changes are adopted, they will significantly influence the temporary employment agency market. Work agencies will no longer be able to assign the same temporary employee to one user-undertaking over many years by juggling the employee between themselves.
The Supreme Court recently confirmed that it is possible to terminate a post-employment non-compete agreement with notice on condition that the agreement includes prerequisites for such termination. The rules under which a post-employment non-compete agreement can be concluded are set out in the Labour Code.
The Supreme Court recently ruled that notice periods may be shortened, but only when the notice is served by the employee and the shorter notice period is more favourable to that employee than the statutory one. The judgment outlines the court's position on the autonomy of will of parties to employment contracts in respect of the length of notice periods. However, it is still not possible to shorten the notice period in case of termination by an employer.
The European Court of Justice recently ruled that the Polish Labour Code provision regarding notice periods applicable to fixed-term employment contracts infringes the prohibition against treating fixed-term employees less favourably than permanent employees if the situations of those employees are comparable. It remains to be seen how the judgment will affect Polish court practice in similar matters.
It is common practice in Poland for companies to hire individuals based on civil law contracts (ie, those for self-employed contractors), as opposed to employment agreements. In this regard, the Supreme Court recently issued a ruling concerning the issue of compensation for a self-employed individual in return for a post-termination non-compete obligation.
The Supreme Court recently issued an important ruling concerning the secondment of an employee to another EU member state, in view of the legal characteristics of a business trip. The ruling materially affects social security obligations with respect to the remuneration of employees posted abroad, and confirms and strengthens the court's general position concerning the narrow understanding of the term 'business trip'.
A material amendment to the Labour Code recently entered into force. The changes concern working time and are generally to employers' advantage – their aim is to increase flexibility and limit personnel costs. Among other things, the changes allow for the extension of working time settlement periods and introduce flexible working hours and procedures for making up for employee absence.
A contractual penalty is widely accepted as a convenient instrument for ensuring that the damage suffered by an employer connected with the violation of a non-compete agreement is compensated. However, it is important to balance the amount of the penalty against the amount of compensation paid to the employee for compliance with the non-compete obligation. The Supreme Court recently ruled on this matter.
Following an employer's instructions is one of the basic obligations of an employee. The Labour Code does not explicitly state the consequences of an employee following unlawful instructions or adhering to unlawful practices applied at the workplace. Such actions could clearly expose the employee to potential liability under criminal or administrative law, but the consequences under employment law are less obvious.
The Supreme Court recently confirmed a new approach to analysing the consequences of a trade union's failure to notify the relevant employer of the number of union members among its employees in a timely manner. The approach provides a better balance between protecting the rights of a trade union and protecting the employer from negative consequences resulting from the union's negligence.
The Supreme Court has ruled on the reinstatement of a dismissed management board member to his job. The court distinguished between the corporate relationship and the employment relationship between the management board member and the company. The decision should end discussion of whether the Commercial Companies Code regulations affect the claims available to employees under the Labour Code.
The Supreme Court recently ruled on the role of company trade union organisations in termination decisions. The court ruled that under certain circumstances, the failure on the part of the company trade union organisation to provide information requested by the employer did not release the employer from the obligation to notify the organisation of its intention to terminate an employee's contract.
The International Labour Organisation has provided the Polish government with recommendations that it change the legislation concerning employees' freedom of association. Following these recommendations, the government should amend labour legislation to ensure that the right to establish and join trade unions is granted not only to 'employees' in the sense of the Labour Code, but also to other categories of worker.