No More Promissory Notes to Secure Employers' Claims

Promissory notes cannot be used to secure the employer's potential claims towards employees. They have been used quite often, e.g., in relation to the entrustment of property to the employee. In case of damage, the employer could enforce its claims under the note and bypass the restrictions of the Labour Code. Admissibility of promissory notes in employment relationship was disputable and finally successfully challenged. The Supreme Court in the judgment of 26 January 2011 (II PK 159/10) ruled that use of promissory notes in an employment relationship is forbidden. The Court emphasized that the regulations of the Labour Code on the employees' liability constitute the only rules governing the employees' liability, while the promissory note creates a second, additional title that escapes the rules of the Labour Code. 

Protection of Women on Reduced Working Time

The Ministry of Labour and Social Policy announced an official position that special protection due to reduction of working time after maternity leave is waived in the case of termination of employment due to reasons not concerning employees (e.g., elimination of a position).

Personal Data Transfer

The transfer of the personal data of employees to another company, even one from the same group, especially when the transfer is abroad, requires specific written consent of the employee, unless there is a specific exception in the law for the respective transfer. A breach of these rules is a criminal offence. Under Polish law, the transfer of personal data is a form of data processing. In the light of the Act of 29 August 1997 on Protection of Personal Data, in order to process the employee's data, the employer is obliged to meet one of the prerequisites set out in the Art. 23 Sec. 1 of the Act. Article 23 Sec. 1 point 1 requires consent by the employee unless there is another exception. Such exceptions include, for example, performance of an agreement with the employee. Stricter rules apply to the transfer of personal data outside of the European Economic Area. In such a case, even consent of the employee may not be sufficient.

Implementation of CRD III

On 28 April 2011 the parliament passed amendments to the Banking Act and the Act on Trading in Financial Instruments, which are the first steps towards the implementation of the Directive 2010/76/UE (the so-called CRD III). The amendments set mechanisms for establishing guidelines for policies regarding variable components of remuneration, i.e., bonuses for executive posts in financial sector. For banks, they will be regulated by a resolution of the Financial Supervision Authority. For brokerage houses by the minister competent for financial institutions by way of regulation. On 29 April 2011 the amendments were sent to the Senate.

Employment Certificate

Under new rules governing employment certificates, after termination of a fixed-term employment agreement (including agreement for probationary period and agreement for the time of performing specified work), employers are not obliged to issue employment certificates if employment is continued on the basis of another fixed-term agreement, whether immediately or after some time. In such a case, one "collective" employment certificate is issued after the termination of the agreement which was in force when a 24 months period from the conclusion of the first fixed-term agreement elapsed. The new rules are unclear - it can be argued that certificates should in any case be issued at least every 24 months. In any case, individual certificates should be issued after termination of every agreement on the employee's demand. These rules entered into force on 21 March 2011. Prior to that date, the employer was required to issue a certificate after termination of each agreement, unless it was going to hire the employee on the basis of a new agreement without any interval. Even a one day break resulted in the obligation to issue a certificate.

Obligatory Internal Health and Safety Service

An employer who employs more than 100 employees is obliged to create an internal health and safety service. It should be composed of its own employees appointed by the employer itself. This is a consequence of the ruling of the Supreme Administrative Court of 12 January 2011 (I OSK 1120/10). It had been disputed whether such an employer could, instead of creating an internal health and safety service, outsource this activity to an external service provider. The ruling cited above confirms that the employer may entrust the health and safety service to an external company only if it is able to prove that it does not have duly qualified candidates among its own employees. The employer must be able to prove not only that its employees do not have proper qualifications, but also that they are not willing to acquire them.

CRD - New Regulation on Remuneration Policies in Credit Institutions

Directive 2010/76 (the so-called CRD III) was due for implementation in national laws of the EU Member States by 1 January 2011. Poland has missed the deadline. CRD III provides new guidelines for remuneration policies in credit institutions. It primarily refers to variable components of remuneration, i.e., bonuses. According to its provisions, no less than 50% of variable remuneration must be composed of shares or similar instruments and at least 40% should be deferred in time. In the event of the occurrence of subdued or negative financial performance, a reduction or even clawback of bonuses paid should be possible.

Equal Treatment of Contractors

According to the Act of 3 December 2010 "on implementation of certain European Union regulations regarding equal treatment," the prohibition of discrimination has been extended to contractors engaged on the basis of civil contracts. An entity engaging contractors on such basis must not differentiate their situation on the basis of sex, race, ethnic origin, nationality, religion, belief, philosophy of life, disability, age or sexual orientation. Contractors who establish facts from which it may be presumed that they have been treated unequally on the basis of one of the criteria listed above may claim compensation. In such a case the employer will have to prove that there has been no breach of the principle of equal treatment. Unlike in employment relations, the catalogue of protected categories is exhaustive.

Employment Must Terminate to Obtain Pension

Starting from 1 January 2011, in order to obtain a pension one must terminate current employment. Until the end of 2010, it was possible to obtain a pension without terminating employment. Now, the pension will not start to be paid until employment is terminated. Employees who have terminated their employment and who have started to receive pension payments may take up new employment, even with the same employer and their pensions will continue to be paid. Of course, the employer is under no obligation to take the employee back. Employees who were employed and simultaneously were receiving pension at the date when the new regulation came into force will retain the right to the pension until the end of September 2011. By that time they must terminate their employment, even for a short period of time, or the payment of their pension will be discontinued.

Complete Ban on Smoking in Workplaces

No more smoking rooms at workplaces since 15 November 2010. The Anti-Nicotine Act introduced a nationwide smoking ban in public premises. This includes workplaces. Exemption can be given by an owner or administrator of a building, where a workplace is situated, who has the discretion to create smoking rooms. Until 15 November 2010 it was held that smoking rooms were obligatory at workplaces. The amendment to the Anti-Nicotine Act does not change the regulation on technical requirements for smoking rooms. These requirements concern, e.g., the frequency of ventilation. An old ordinance on health and safety which requires smoking rooms at workplaces still technically applies today, but being contrary to a legal act of a higher rank it is not binding. The Minister of Labour and Social Policy is working to harmonize the ordinance with the new regulations in the Anti-Nicotine Act.

Tags: Smoking