HR In the Know 3/2024

(Extended) employer's information obligations about individual employment conditions – it’s important to remember about providing further updates as a given employee’s situation evolves

The amendment to the Labour Code (the "Labour Code") and certain other acts, which entered into force on 26 April 2023, brought about a number of changes to an employer's information obligation towards employees. The following have been extended: (i) the standard information obligation towards employees and (ii) an employer’s information obligation whilst posting an employee from the territory of the Republic of Poland/sending an employee to perform a business task outside the country; and (iii) an additional information obligation towards employees working remotely has been introduced by the amendment to the Labour Code regarding remote work.

In practice, this has resulted in the need for HR departments to stay alert as to updating supplementary information for individual employees and the need to prepare new templates of information on employment conditions and information for employees performing foreign duties (and not merely for posted employees). However, not all employers are keeping up with the new obligations, and therefore they are often overlooked.

Basic information obligation regarding individual employment conditions (Article 29 § 3-3(4) of the Labour Code)

Following the amendment, the employer's information obligation has been extended to include a number of new items. The way in which their content is to be formulated is subject to many interpretations by the Ministry of Family, Labour and Social Policy and the National Labour Inspectorate, and HR departments continue to struggle with doubts as regards the practical templates of the documents. It is not known, among other questions: how detailed information templates should be so that they remain sufficiently comprehensible for employees, or in how much detail they should address individual situations, such as working hours, issues of remuneration, benefits in cash or in kind.

Crucially, it is also necessary to inform the employee about any changes in the terms of employment mentioned above, as well as about the status of being covered by a collective bargaining agreement or other collective agreements - immediately, but no later than on the day where such a change applies to him/her (unless the change results from a change in the provisions already indicated in the information) (Article 29 § 3(3) of the Labour Code). To avoid the need for constant revisions, such information should not be too detailed.

Additional information regarding remote work

If employees perform work remotely, the above mentioned information additionally includes at least: (i) identification of the employer's organizational unit within whose structure the position of the employee performing the remote work is situated; (ii) indication of the designated person or body internally responsible for issues of labour law and thus responsible for cooperation with the employee performing remote work and likewise authorized to carry out inspections on the site of such remote work.

Such information may be presented no later than on the day the employee begins remote work, if such remote work is agreed by the parties during the course of employment. However, if remote work is agreed when signing an employment contract, information should be provided in accordance with the general principles applicable to the basic information obligation, i.e. no later than within 7 days from the date the employee is admitted to work (Article 67(21) of the Labour Code).

Information for posted employees/performing a business task outside the country (Article 29(1) of the Labour Code)

Changes in the information obligation for departing employees (i.e. before the employee leaves for work or to perform a business task outside of the country for a period exceeding 4 consecutive weeks) have covered both posted employees within the meaning of the Act on the posting of employees in the framework of the provision of services, as well as other employees sent on a business trip/to perform a business task, provided that the stay lasts more than 4 consecutive weeks. Such a business trip/task will require the employer to prepare appropriate additional information, including: (i) the country or countries in which the work or business task outside the country is to be performed; (ii) the expected duration of the work or business task outside the country; (iii) the currency in which the employee's remuneration will be paid while performing work or business task outside the country (it is sufficient only to indicate the relevant provisions of labour law (Article 29(1) § 3 of the Labour Code)); (iv) benefits in cash or in kind related to the performance of work or business task outside the country (if such benefits are provided for in labour law provisions or are stipulated in the employment contract); (v) ensuring or not ensuring the employee's return to the country; (vi) conditions of the employee's return to the country - in the case of ensuring such return (Article 29(1) § 2 of the Labour Code).

In the case of posting of employees in the framework of the provision of services, the employer must additionally inform the posted employee, among others: on (i) remuneration for work due under the laws of the country of posting; (ii) posting allowance or provisions relating to covering (business) travel costs, meals and accommodation; (iii) a link to the host country's website with information on employment conditions for posted employees (Article 25c(1) of the Act on the posting of employees in the framework of the provision of services).

Employers should remain vigilant throughout the employee's stay abroad, as any changes to the above-mentioned employment conditions should be communicated to employee immediately. In this area, the regulations also oblige the employer to provide updated information no later than on the date of the entering into force of the new conditions (unless the change results from changes to the provisions already indicated in the information) (Article 29(1) § 4 of the Labour Code and Article 25c(3) of the Act on the posting of employees in the framework of the provision of services).

How to inform the employee

In most cases, information procedures have been simplified, allowing employers to provide information also in electronic form. The only stipulation the legislator has indicated is that information in electronic form must be available to the employee in such a way that it can be stored and printed. Additionally, the employer must keep proof of the provision/receipt of the above-mentioned information by the employee (Article 29 § 3(4) of the Labour Code).

Protecting employees against negative consequences

Employees can request for the reasoning for terminating their employment contract, if they suspect that such reason for termination was their attempt to obtain the above-mentioned information. In such cases, the reverse burden of proof will apply and the employer will be forced to prove that the reason for terminating the employment contract was unrelated to the fulfilment of the information obligation (Article 29(4) of the Labour Code). In the event of a breach by the employer of the above-mentioned information obligation, the employee has the right to claim compensation in an amount not lower than the minimum wage (Article 18(3e) of the Labour Code).