HR In the Know 6/2024

As a result of the amendment to the Labour Code and certain other acts, which entered into force on 26 April 2023 and implemented into the Polish legal system a.o. Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (the "Directive"), in addition to the basic information obligation on the individual terms and conditions of employment (Article 29 § 3-3(4) of the Labour Code), employers have also been subjected to new and additional duties related primarily to informing employees about their rights, as well as responding to various types of employee requests related to their working conditions. However, not all employers have monitored these changes and are implementing them.

With regard to the addition of point 1a to Article 94 of the Labour Code, the employer is obliged to inform employees about the terms and conditions of their employment referred to in Article 29 § 3, 3(2) and 3(3) of the Labour Code or in Article 29(1) § 2 and 4 of the Labour Code (we have described these obligations in previous editions of HR in the Know).

On the other hand, according to the new wording of Article 94(2) of the Labour Code, the employer is obliged to inform employees about: (i) the possibility of full-time or part-time employment, (ii) the possibility of promotion, (iii) job vacancies. The information obligation applies to both fixed-term and indefinite-term employees, full-time or part-time employees (as well as temporary workers).

The above information can be provided by the employer to employees in the customary manner adopted by the employer (e.g. by posting the information on a notice board, posting it in electronic form on the intranet). It is recommended that the information cover both the vacancy itself and the requirements to be met for this position. Additionally, the deadline for submitting candidacies should be set in such a way as to enable persons employed in the positions covered by the information obligation to apply in accordance with the announcement. There are no statutory requirements as to the timing and frequency of providing the indicated information by the employer but such information announcements should be implemented periodically and in such a way as to enable employees to apply for vacancies or promotion. A breach of this information obligation could potentially enable affected employees to pursue discrimination claims.

It is also worth mentioning about the new right of employees under Article 29(3) of the Labour Code and the obligation of the employing entity to react, i.e. the possibility for employees who have been employed by a given employer for at least 6 months to submit an application (in paper or electronic form) to change their type of employment contract to an employment contract for an indefinite period of time or more predictable and safe working conditions (which remain undefined, resulting in various doubts and possibility of submitting of various applications by the employees; including e.g., those involving a change in the type of employment or full-time employment). It is admissible for submission once per calendar year and is not available to employees employed on the basis of employment contracts with a trial period. However, it is worth remembering that an employment period with a given employer also includes certain previous periods of the employee’s work with that employer or its predecessor.

The employer has an obligation to respond to such a request and to provide information about the reason for a refusal (in the case of a negative decision) within a maximum period of 1 month from its submission - the response can be made in writing or in document form (e.g. via e-mail correspondence). The law requires that the employer accept the employee's application if possible, which means that it is not strictly mandatory to take it into account.

It should also be taken into consideration that an employee's application under Article 29(3) § 1 of the Labour Code may not constitute: a reason justifying the termination of an employment contract or its termination without notice by the employer, a reason justifying the preparation for termination or termination of the contract without notice or a reason for taking an action having an effect equivalent to the termination of an employment contract.

In the event of a dispute arising due to the above-mentioned situations, the burden of proof is on the employer to prove that the application under Article 29(3) § 1 of the Labour Code was not the reason for the termination of the employment contract or the application of an equivalent action.

The amendment to Article 281 of the Labour Code results in the introduction of instances resulting in an employer’s responsibility for a breach and consist of: the failure to timely inform the employee about the terms and conditions of the employment in gross violation of Article 29 § 3, 3(2), 3(3) and 3(3) of the Labour Code and Article 29(1) § 2 and 4 of the Labour Code or the failure to respond to a request to change the type of employment contract to an employment contract for an indefinite period of time or with a more foreseeable or safe working conditions (including changing the type of work or full-time employment) or failing to inform about the reason for refusing to grant the employee's request under Article 29(3)
§ 3 of the Labour Code.