Employment Practice: Newsletter Q4 / 2021

Dear all,

We end this year with the latest edition of our Newsletter. It is dominated by issues concerning the anticipated changes that foreshadow a year full of challenges for employers.

We wish you a Merry Christmas and a Happy New Year.

Polish Order

The so called Polish Order has been published in the Journal of Laws – regulations that significantly change the current rules for the settlement of income taxes and the calculation of health insurance contributions, which will apply from January 1, 2022. Already, at the present stage, they generate a lot of interpretation doubts and practical complications for the companies.

The labour department within the Ministry of Family and Social Policy announces one draft amendment to the Labour Code regarding remote work and sobriety control of employees  

It will be a combination of two projects which were previously developed, reviewed and publicly consulted. The changes would be finalised in the first quarter of next year.

The announcement of further significant changes to the Labour Code and the legislative package on combating wage discrimination against women 

The assumptions of the "Flexible and stable work" package would include a shortening the period for hiring employees on a fixed-term contract to 15 months, with the possibility of concluding a maximum of two fixed-term employment contracts, as well as creating more flexible forms of work for pregnant women and parents of children up to 4 years of age. Initially, they are assessed as problematic from the perspective of employers.

WHO: from January 1, 2022, "burnout" as one of the problems related to work or its lack, not a medical condition 

According to the new classification, burnout is a syndrome understood as one resulting from chronic stress in the workplace that has not been effectively controlled. It is unclear whether burnout could be the cause of absence from work in 2022. There are arguments against this position.

The Sejm received a draft law which would allow the employer to verify the information provided by an employee about a negative result of the SARS-CoV-2 diagnostic test, information about a past infection or vaccination against COVID-19 

The first reading of the draft by the Health Committee took place in the Sejm. The draft introduces some facilitations for employers, but does not meet the broader expectations in this regard.

The proposed changes on amounts free from deductions from salary 

The draft act provides for the reduction of this amount from 100% to 85% of the minimum salary for work, which is to increase the effectiveness of judicial and administrative enforcement.

Lack of timely implementation of the provisions of the Directive protecting whistleblowers

The deadline for implementing the so-called Directive on whistleblowers passed on December 17, 2021. The government has not yet presented the final version of the draft provisions after the stage of public consultations. It can be expected that the relevant implementing regulations will enter into force no earlier than during the first months of next year. Nevertheless, taking into account the complexity of the relevant regulations, employers shall already start working on preparation of implementing the proposed solutions internally.

The change of rules of employing foreigners 

The law introducing regulations aimed at streamlining the procedures for granting permits to foreigners will be submitted for the President’s signature. The amendment include extending the possibility of entrusting work to a foreigner without a work permit to 24 months on the basis of a declaration on entrusting work, entered in the declaration register (a change from the current 6 months in the next 12 months). It is to constitute significant facilitations and a remedy for the current delays in the relevant proceedings.

Higher contributions to the Social Fund in 2022 

The act, according to which the allowance for the Company Social Benefit Fund in 2022 would be calculated based on the average monthly salary in the national economy in the second half of 2019, announced by the President of GUS, which amounted to PLN 4,434.58, has been submitted for the signature by the President. These costs will be noticeable to employers.

Draft law on the electronic conclusion and servicing of contracts, including for micro-entrepreneurs, is at the stage of social consultations 

It provides for the provision of a system for servicing contracts for certain small entities, i.e. micro-entrepreneurs, farmers, natural persons, parents employing a nanny, which will make it easier for these entities to conclude employment contracts, mandate contracts, reporting and deregistering employees and contractors in ZUS, handling correspondence with ZUS, accounting for insurance contributions, as well as calculating income tax. Such solutions would be a revolution to the existing practice and would potentially constitute a significant facilitation.

The European Commission has presented a draft of a new EU Directive on improving working conditions in platform work 

Member States would be required to implement procedures allowing for the verification and correct determination of the employment status of people performing work on online platforms as an employment relationship and, consequently, to ensure their employment rights. The presumption of the existence of an employment relationship would apply if two of the five criteria of the employer test were met. The project is at an early legislative stage in the European Parliament.

ZUS: The value of protective and investment premium of the life insurance in the part co-financed by the employer for employees is not excluded from the base for social security contributions, due to the financial nature of the benefit.

Explanations of the labour ministry to the current version of the draft regulations on remote work 

The possibility for the employer and the employee to agree on the obligation to inform about the current place where work duties are performed (if more than one place of remote work has been agreed for a given employee) and the rules for recording working time when working remotely, has been clarified.

Personal Data Protection Office (UODO): The employer does not have the right to obtain the employee's data in the form of a registered address and correspondence address, which is necessary for reporting purposes to the Social Insurance Institution, before the employee is hired.

National Labour Inspectorate (PIP): It is permissible for an employer to grant an employee a COVID-19 vaccination bonus, as long as the employer meets the required conditions for paying employees an additional benefit for receiving the vaccine. 

Personal Data Protection Office (UODO): If the employer has provided for the participation of trade union representatives in the process of granting individual benefits to individual persons in the regulations of the Company Social Benefits Fund, then that representative may and should have access to personal data contained in the application to grant the benefit.

Supreme Court: An agreement concluded between an investor intending to acquire shares in a company whose shareholders are employees, and the company trade unions operating in the company, does not constitute a source of labour law as it is not based on a legal regulation.

Supreme Court: The fact that an employer finances the remuneration for the performance of work in any way for its benefit by its employee, but on the basis of a civil law contract concluded with a third party, supports (but does not predetermine) the treatment of the contractor as an employee with regard to the obligation to be subject to social insurance with its employer.

Supreme Court: Pursuant to the provisions of the Act of 23 May 1991 on trade unions, the legislator does not grant trade unions a claim for the annulment of the employer's decision to establish the rules of the company social benefit fund after agreeing its content with an employee selected by the employees to represent their interests, if, despite consultations, the workplace trade unions fail to present a mutually agreed position.

Supreme Court: Perceiving infringement of personal interests by the president of the management board in the indication of the resolution of the defendant company's supervisory board, that the reason for his dismissal from his position was a loss of trust, and in failure to discharge him for the same reason, which, in his opinion, led to the collapse of his professional career and difficulties in finding new employment, is unjustified for the reason of too general and broad concept of the “professional career". Lack of harmonious cooperation in the management board, which causes a personal conflict that does not end, is usually not a desirable situation in the management of a company, and therefore may justify a loss of trust in the president of the management board and, consequently, dismissal from the function and failure to grant discharge of duties.

Supreme Court: If the duration of an employment contract is determined simultaneously with its conclusion, then it is contrary to the nature of the contract and changes the nature of the contract concluded for an indefinite period to a contract concluded for a definite period.

ECHR: The lack of protection of whistle-blowers against harassment and mobbing violates their right to privacy and family life 

Countries must protect the physical and mental integrity of individuals against others, including by establishing an appropriate legal framework for this purpose.