The rule of equal treatment
Polish labour law provides for the obligation to treat all employees equally with respect to conclusion and termination of employment, employment terms, promotion and access to professional training, irrespective of:
- political views;
- trade union membership;
- ethnic background;
- religious creed;
- sexual orientation;
- full-time or part-time employment;
- employment for indefinite or fixed time.
These are referred to as prohibited criteria. The list is not exhaustive, meaning that, depending on a situation, there may be other circumstances leading to, or resulting in, discrimination, and thus constituting prohibited criteria.
If the employer differentiates situations of particular employees based on prohibited criteria, they will be considered to violate the rule of equal treatment. The exception is when the employer is able to demonstrate that such differentiation is justified by genuine occupation requirements.
Examples of such genuine occupation requirements would include:
- experience and length of employment affecting the conditions of employment, salary or promotion;
- grounds related to parenthood protection or disability reasons;
- changes in working time arrangements if justified by reasons unrelated to employees.
Remedies available to discriminated employees are not overwhelming: they may claim damages. The minimum is minimal wages, but there is no upper limit. Employees are protected from dismissal once the claim has been brought. The claim may also be made after the employment relationship has come to an end, no matter whose initiative that was. Damages must be effective, proportionate and preventive.
The employer is also explicitly obliged to provide equal pay for equal work or for work of equal value. In this context pay is understood to include not only regular wages, but also monetary additions and non-material benefits. If a case based on violation of the rule of equal pay is brought to court, the court is not only authorised to award damages to the employee, but also to determine his or her pay for the future. This is an extraordinary legal measure under Polish labout law, as normally the court is not in the position to change or decide about the amount of the employee’s pay. The employee’s pay is subject to the parties’ agreement only.