On 4 April 2023, the Act of 9 March 2023 amending the Labour Code was published. The changes will come into force after 21 days, i.e. on 26 April 2023.
Implementation of EU directives
The latest amendments to the Labour Code aim to implement the following EU directives into Polish law: the Work-Life Balance Directive[1] and the Transparent Working Conditions Directive[2].
The main aim of the new regulations is to ensure the transparency of working conditions and to improve living and working conditions.
Changes to probationary contracts
The length of a probationary period will not change and will continue to be a maximum of 3 months.
However, if an employer intends to conclude a fixed-term employment contract after a probationary period, the length of the probationary period shall be commensurate with the expected duration of the contract and shall not exceed the following periods:
- 1 month – if the intention is to conclude a fixed-term employment contract for less than 6 months
- 2 months – if the intention is to conclude a fixed-term employment contract for at least 6 months and less than 12 months.
Therefore, when concluding a probationary contract, an employer shall specify the intended duration of a contract to be concluded after the probationary period and determine the duration of the period accordingly. Consequently, a probationary contract concluded for a period of up to 2 months shall indicate the period for which the parties intend to conclude a fixed-term employment contract, if they intend to conclude such a contract for a period of less than 12 months.
Another novelty is the possibility of extending a probationary period by a period of leave or other excused absence (e.g. illness).
In an employment contract, the parties may also agree to extend a probationary period once (for a maximum of one month) if justified by the nature of work. This is because, in some cases, more time may be needed to verify an employee’s qualifications (which is the main purpose of a probationary period).
Renewal of a probationary contract with the same employee will only be allowed if the employee is to be employed for a different type of work. The amendments remove the possibility of renewing a probationary contract to perform the same type of work three years after the expiry or termination (Polish: rozwiązanie) of the previous contract.
The right to concurrent employment with another employer
Both the Polish Constitution and the Labour Code contain provisions on the principle of freedom of work (in particular, the right to work freely chosen in accordance with Article 10 of the Labour Code).
On the other hand, the amendments to the Labour Code introduce an explicit provision according to which an employer may not prohibit an employee from simultaneously remaining in an employment relationship with another employer or from simultaneously remaining in a legal relationship which is the basis for the provision of work other than an employment relationship.
This prohibition does not apply if a non-compete agreement is in place. An employer will only be able to require an employee to give up additional employment with another entity if that additional employment would violate the non-compete agreement.
Similarly, the mere fact of taking up employment with another employer may not be the basis for unfavourable treatment of an employee, and in particular may not constitute a reason justifying the termination, with or without notice (Polish: wypowiedzenie lub rozwiązanie bez wypowiedzenia), of an employment contract by an employer, the preparation of such termination or a reason for the application of any measure having equivalent effect to the termination (Polish: rozwiązanie) of an employment contract.
Extension of data in employment contracts
The list of minimum information to be included in an employment contract will change.
In particular, an employer shall provide its registered office address in the contract.
The provisions of a probationary employment contract must also be extended to include the following information:
- Its duration or end date
- The period for which the parties intend to conclude a fixed-term contract at the end of the probationary period, if This period is less than 12 months
- Information on the possibility of extending the probationary period, if justified by the nature of work (for a maximum of 1 month)
- Information on the possibility of extending the probationary period to cover periods of leave or other excused absence.
Extension of information on terms and conditions of employment
Employers’ obligations to provide information on terms and conditions of employment to newly hired employees will be expanded.
No later than 7 days after an employee has been admitted to work (previously 7 days after an employment contract has been concluded), an employer shall provide the employee with the following information:
- The maximum daily and weekly working time
- The standard daily and weekly working time
- Breaks to which the employee is entitled
- Daily and weekly rest periods
- Overtime work and overtime pay rules
- In the case of shift work, the rules on changing from one shift to another
- In the case of multiple workplaces, the rules on movement between workplaces
- Components of the employee’s remuneration and benefits in cash or in kind other than those agreed upon in the employment contract
- The amount of paid leave to which the employee is entitled, in particular annual leave, or, if this is not possible to determine at the date of providing the employee with the above information, the rules for its determination and granting
- The applicable rules on the termination of the employment relationship, including the formal requirements, the length of notice periods and the time limit for appealing to a labour court, or, if it is not possible to determine the length of notice periods at the date of providing the employee with the above information, the manner of determining such notice periods
- The employee’s right to training, if provided by the employer, and in particular the general principles of the employer’s training policy
- Collective labour agreement or other collective agreement to which the employee is subject and, in the case of a collective agreement concluded outside a workplace by joint bodies or institutions – the names of those bodies or institutions
- If the employer has not established work regulations – the date, place, time and frequency of payment of remuneration for work, night work and the method adopted by the employer for confirming the arrival and presence of employees at work and for justifying any absence from work.
In addition, no later than 30 days from the date of an employee’s admission to work, an employer shall provide the employee with information on the name of the social security institution to which the social security contributions related to the employment relationship are paid (i.e. ZUS or the relevant foreign social security institution to which the contributions are paid) and information on the social security-related protection provided by the employer. The employer shall also inform employees about any Employee Capital Plans in operation.
Any change in an employer’s registered office address shall be communicated by the employer to employees within 7 days of the change.
A simplification for employers is the possibility of providing information to employees in electronic format (e.g. by email or on a disk).
The obligation to provide the extended information applies to new employees, i.e. those hired after the entry into force of the Act, i.e. after 26 April 2023. However, existing employees will be able to make a binding request to an employer to provide the extended information. The employer will then be obliged to provide the information within three months of the request.
Additional information shall also be provided to an employee prior to a business trip abroad for a period of more than 4 consecutive weeks (in particular the length of stay, the currency of remuneration, and the terms and conditions of return).
Additional information obligations of employers
As part of the implementation of the Working Conditions Transparency and Predictability Directive, the amendments to the Labour Code require employers to inform all employees, in the manner customary to the employer, of the following:
- Promotion opportunities and
- Vacancies.
Requests of employees for a change in the form of a contract, and for more predictable and secure working conditions
An employee who has been employed by an employer for at least 6 months may, once per calendar year, request the employer:
- To convert their employment contract into a permanent contract or
- For more predictable and secure working conditions, including a change in the type of work or full-time employment.
This does not apply to employees on probationary contracts.
The employer is not bound by any such request, but should take it into account as far as possible.
The employee’s request should be considered by the employer, taking into account the needs of both the employer and the employee. The request should be answered within 1 month, stating the reasons for refusal if the request is not granted.
Both the employee’s request and the employer’s response may be made in writing or in electronic format (e.g. by email).
Additional breaks
As part of the implementation of solutions aimed at improving employment conditions, the rules on breaks at work will change. Under the current rules, if an employee’s daily working time is at least 6 hours, the employee is entitled to a break of at least 15 minutes, which is included in the working time.
The amendments to the Labour Code provide for the introduction of additional breaks included in working time:
- A second break of at least 15 minutes if an employee’s daily working time exceeds 9 hours
- A third break of at least 15 minutes if an employee’s daily working time exceeds 16 hours.
Additional work breaks are intended to help employees recover, therefore they cannot be accumulated and their use is the responsibility of employees.
Time off on grounds of force majeure
A new option is for employees to take time off from work for urgent family reasons on grounds of force majeure in the case of illness or accident if the employee’s immediate attendance is indispensable.
The time off will include 2 days (or 16 hours) per calendar year, with the right to 50% of the salary calculated as the salary for annual leave.
The employee should submit the relevant request in writing or electronically (e.g., by e-mail) no later than the day the time off is taken.
Carer’s leave
The amendment has introduced a new type of leave – carer’s leave of 5 days per calendar year.
The employee will not retain the right to pay for the duration of the carer’s leave, but this period will count as part of the period of employment on which the employee’s entitlements depend.
Carer’s leave is intended to enable workers to provide personal care or support to family members (son, daughter, mother, father, spouse) or persons living in the same household, who require care or support for serious medical reasons.
This leave can be taken either as a one-time leave or in parts, and will be granted upon the employee’s request submitted in hard copy or electronically no less than 1 day prior to the commencement of the leave.
The request must include:
- Details of the person in need of care/support
- The reason for the employee’s need to provide personal care or support (without providing any details of the health condition of the person to whom the employee is providing personal care)
- Degree of kinship
- Residential address, in the case of a person who is not a family member (to confirm that the non-family member resides in the same household with the employee).
Parental rights and overtime work
In accordance with the current wording of the Labour Code, an employee caring for a child up to the age of 4 may not be employed without their consent for overtime, night time, intermittent working hours, or posted outside the permanent place of work.
The amendment extends these rights to employees raising a child up to the age of 8.
Request for flexible working arrangements
An employee raising a child up to the age of 8 may apply for flexible working arrangements.
Flexible working arrangements mean: remote working, intermittent working schedules, short working week scheme, weekend working scheme, flexitime, individual working time schedule, and reduced working hours.
The employer is not bound by the employee’s request, but should consider it taking into account both the needs of the employee and its own needs, including the need to ensure the normal course of work, the organisation of work or the type of work performed by the employee.
Employees should be informed of the results of their application within 7 days of the filing of the request, with the employer informing the employee of either the granting of the request or the grounds for refusal.
Parental leave: increase and introduction of a non-transferable period of parental leave
The amendment to the Labour Code extends parental leave:
- To 41 weeks for the birth of one child (instead of the previous 32 weeks)
- To 43 weeks for a multiple birth (instead of the previous 34 weeks).
Parents of a child with a certificate stating a severe and irreversible disability or an incurable life-threatening illness, that arose during the prenatal period of the child’s development or during childbirth, will be entitled to parental leave to care for that child of up to:
- 65 weeks – for the birth of one child
- 67 weeks – for multiple births.
A rule has also been introduced whereby each employee-parent will have an exclusive right to 9 weeks of parental leave out of the above-mentioned leave entitlement. This right may not be transferred to the other parent of the child – this portion of the leave will be non-transferable.
Parental leave will be granted either in a single period or in parts (but not more than 5 parts), no later than the end of the calendar year in which the child turns 6 years old.
Reduced period for taking paternity leave
The length of paternity leave remains unchanged and it will continue to be 2 weeks. However, the period during which an employee can take paternity leave will be reduced, i.e.:
- Until the child is 12 months old (previously 24 months old), or
- Until the lapse of 12 months (previously 24 months) from the date on which the decision on adoption of the child becomes final and no longer than until the child is 14 years old.
New rules on the termination of fixed-term contracts
Until now, employers were not obliged to give reasons for the termination of a fixed-term contract. There was also no obligation for trade union consultation, and no possibility to apply for reinstatement. Consequently, the protection of the employee’s rights in this type of contract was weaker.
Accordingly, the European Commission argued that there was unjustified unequal treatment in terms of the conditions of termination of contracts of employment for fixed-term employees compared to permanent employees.
The amendment has introduced a fundamental change in this respect. Employers will now be obliged to:
- Provide grounds for the termination of fixed-term contracts
- Carry out trade union consultations also for the intended termination of a fixed-term contract.
If the court determines that the giving of notice of termination or the termination of a fixed-term employment contract is unjustified or unlawful, the court will be able to reinstate the employee (or award damages if the period until the expiry of the fixed-term contract is too short).
Protection against less favourable treatment in employment due to the exercise of employee rights
The exercise by an employee of their rights in respect of breaches of labour law, including the principle of equal treatment in employment, may not be the basis for any unfavourable treatment of that employee. In particular, it may not be a reason justifying termination of employment with or without notice by the employer.
Employees who have asserted their rights and have as a consequence suffered unjust treatment as given above are entitled to compensation of not less than the minimum salary.
The following may not be a reason justifying termination of the contract of employment with or without notice by the employer, justifying the preparation for termination of the contract of employment with or without notice, or for taking action which has an effect equivalent to termination of the contract of employment:
- A request by the employee for a change in the form of the contract of employment and more predictable and secure working conditions
- Additional employment (on the basis of a contract of employment or a civil law contract with another employer), unless there are restrictions in this respect resulting from separate regulations or the additional employment violates the employee’s non-compete obligation
- The employee’s request for additional information on the terms and conditions of employment
- The exercise of the right to reimbursement of the cost of training and the inclusion of training time in working time.
In the event of a dispute, a reverse burden of proof will apply, meaning that it will be the employer who will have to prove that they were not motivated by the above-mentioned reasons when terminating the contract of employment.
If an employee believes that their probationary contract of employment was terminated for the above-mentioned reasons, they may, within 7 days of the employer’s notice of termination, submit a request for stating the reason justifying the termination. The employer must respond within 7 days of receiving such request.
Extended protection for parent employees
The protection of employees-parents will be strengthened.
During:
- Pregnancy and maternity leave
and from the date of the employee’s request for:
- Maternity leave or part thereof
- Leave on maternity leave terms or part thereof
- Paternity leave or part thereof
- Parental leave or part thereof
‒ until the end of that leave, employers may not:
- Make preparations to terminate employment with that employee with or without notice
- Terminate employment with that employee with or without notice, unless there are reasons justifying termination without notice through the fault of the employee and the company trade union organisation representing the employee has agreed to the termination.
This protection takes effect at:
- 14 days before the start of maternity leave or part thereof on the terms of maternity leave
- 21 days before the start of parental leave or part thereof
- 7 days before the start of paternity leave or part thereof.
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[1] Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU (OJ L 188, 12.07.2019, p. 79)
[2] 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 (OJ L 186, 11.07.2019, p. 105)
