Law

New regulations in Polish Labour Code

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New regulations in Polish Labour Code

We talk to Michał Lisawa, LL.M, Attorney-at-law and head of the employment practice at Baker McKenzie about the changes that await us this year after the entry into force of the amendment to the Polish Labour Code.

FOCUS ON Business: We have been hearing a lot recently that the amendment to the Polish Labour Code, which comes into force in a few months, aims to ensure a balance between work and private life of working parents and carers. What specific regulations are to provide these groups of employees with a better "work-life balance”?

Michał Lisawa, Baker McKenzie: These changes result from the EU directive 2019/1158 on work-life balance for parents and carers. They are meant to make it easier for parents to reconcile work and family life. Poland is obliged to implement these new laws until 1 August 2022.

In particular, employees will gain the right to 5 days of special unpaid carers' leave per year. It can be taken in order to ensure personal care of or support for a family member or a person living in the same household, which requires care or support due to important medical reasons.

Employees will be also entitled to time off from work of 2 days or 16 hours per year due to force majeure, for urgent family reasons in the case of illness or accident making the immediate attendance of the employee indispensable. Employees will retain the right to half of their remuneration during such time off.

Currently, it is prohibited to hire employees taking care of children of up to 4 years old, without their consent, in overtime, night shift, the system of interrupted working time or to post them outside of their regular place of work. This prohibition will be extended to parents taking care of children of up to 8 years old.

Employees taking care of children of up to 8 years old will also have the right to request a flexible organization of work, that is, applying the telework, a flexible working time system (e.g. interrupted working time, shortened working week or weekend work), flexible working hours, individual working schedule or decreased working hours. However, the employer will be able to reject such a request by providing justification related to its needs and capacity.

The changes also concern issues related to maternity, parental and childcare leaves. There will be, among others the extend of scope of protection for employees on maternity leave, leave on the terms of maternity leave and parental leave. Employers, while employees being on the said leaves, not only, as a rule, will not be able to terminate their employment relationship with them, but also will not be able to conduct preparations in connection with the intention to part with the employee.

 These changes also result from the EU directive 2019/1158. In particular, the parental leave will be extended from 32 to 41 weeks in the case of birth of one child and from 34 to 43 in the case of birth of more than one child. This leave could still be taken by each of the parents. However, each parent will have the exclusive right to 9 weeks of parental leave from the above total duration of the leave. This right cannot be transferred to another parent.

 In addition, the protection of employees making use of their right related to parenthood will be extended. First, as a rule, the protection against dismissal will cover not only employees on leaves related to parenthood, but also those granted a flexible organization of work. Second, such protection will also cover all preparations in connection with an intention of dismissing an employee. Third, the protected status will start on the day of submitting a relevant request by the employee for a leave or a flexible organization of work.

 The prohibition of preparations in connection with an intention of dismissing an employee seems particularly controversial. It is not clear exactly what actions of the employer will be forbidden. For example, one could wonder if this prohibition covers also conducting employment analysis or gathering opinions about a particular employee.

The changes are also to concern length of the trial period. How long then will employees and employers be able to work or employ under a probation employment contract?

Currently, the probation period cannot exceed 3 months, regardless of the type and duration of the planned subsequent employment contract with the employee. Under the new law, the probation period will have to be shorten in certain situations. It cannot exceed:

  • 1 month – in the case of an intention to conclude the subsequent employment contract for a fixed-term period shorter than 6 months,
  • 2 months – in the case of an intention to conclude the subsequent employment contract for a fixed-term period of at least 6 months, but shorter than 12 months.

The above periods could be extended by up to 1 month if it is justified by the type of work. Moreover, the employment contract for a probation period may provide that it will be prolonged by the time equivalent to potential leaves or other justified absences of the employee.

It seems that while the amendment brings some facilitation for employees, it will yet create many new challenges on the part of employers. Which of them can cause the most trouble for employers?

It is worth mentioning two additional changes, which may be a challenge for employers. The first one relates to employment contracts for a fixed term. It is planned to unify the rules of terminating fixed-term and indefinite contracts. In particular, the employer will be obliged to justify the termination of a fixed-term contract and consult its termination with a trade union. The employee will have the right to claim reinstatement to work in the court.

In addition, employees employed for at least 6 months will have the right to request changing their type of work, changing their contract into indefinite one or changing their working hours to full time. The employer will have to answer in writing within 1 month. To the extent possible, the request should be accepted. Potential rejection will have to be justified, taking into account the needs of the employer and the employee.

Since the outbreak of the pandemic, a huge number of employees perform remote or hybrid mode of work, with the prospect of maintaining such a model permanently. Will the issues related to such modes of work and the circumstances related to them be finally regulated?

The current laws provide for various types of performing remote work. The Labour Code regulates the telework for a number of years now. It should be applied if the work is performed regularly outside of the workplace and the employee communicates the results of work to the employer by the means of electronic communication. The telework is formalized and relatively not flexible.

The temporary remote work performer upon the employer’s request due to the COVID-19 was introduced in 2020. However, this regulation is very general and is to be in force only during the state of pandemic threat or the state of pandemic and for 3 months after their cancellation.

At the same time, in the middle of 2020 the government announced its plans for new regulations on remote work in the Labour Code. They should replace the laws on telework and temporary remote work due to the COVID-19. A few subsequent draft versions of this new regulation were published, but it still has not been adopted. As a result, many employers create their own intern procedures on remote and hybrid work, which are meant to apply also after the pandemic is over. However, it may turn out that they will have to be updated once the new laws enter into force.

Thank you for the interview.

This article comes from magazine:
FOCUS ON Business #4 May-June (3/2022)

FOCUS ON Business #4 May-June (3/2022) Check the issue