Employment & Benefits, Poland updates

Social security contributions of self-employed managers
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 17 January 2018

Social security contributions in Poland are significant, particularly in the case of highly paid managers. As a result, it is common practice for managers to perform their duties as self-employed persons under management contracts. A recent Supreme Court decision confirmed that management contracts can still be performed by self-employed managers and that such business activity constitutes a basis for social security insurance if the manager is not a management board member.

Supreme Court decides that employers can demand information on employees' additional work activities
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 25 October 2017

The Supreme Court recently ruled that an employer can demand that an employee inform it of any additional activities that he or she undertakes during the employment period. If the employee fails to do so, this can justify his or her employment contract being terminated upon notice. The judgment confirms the court's existing position in this regard. However, the court's second conclusion concerning data protection is new and may raise doubts regarding its compliance with the Labour Code.

Changes to employment of temporary workers introduced
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 05 July 2017

The Act Amending the Act on the Employment of Temporary Workers and Certain Other Acts recently entered into force. It introduces important changes and limitations concerning temporary work and aims to improve the temporary work market and counteract abusive practices. The amendment concerns all employers that hire temporary workers.

Supreme Court judgment on concluding employment agreement with pregnant woman
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 19 April 2017

In a recent judgment concerning an employment agreement concluded with a pregnant woman, the Supreme Court stated that the actual and real performance of an employment relationship is decisive for determining whether the parties actually concluded an employment contract. Entitling a document 'employment agreement' and having it signed by the parties does not determine its legal status – rather, it is crucial that work is performed on the basis provided for in the employment contract.

Supreme Court issues landmark ruling regarding claims for termination on discriminatory grounds
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 08 February 2017

The Supreme Court recently decided that bringing a claim against an employer for the unlawful termination of an employment contract pursuant to Article 45(1) of the Labour Code is not a prerequisite to obtaining an award of damages pursuant to Article 18(3d) of the code. The decision fundamentally changes the risks associated with serving a termination notice and terminating an employment contract and enables employees to make claims long after their employment has been terminated.

Supreme Court decides on obligation to obey employer instructions
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 14 December 2016

The Supreme Court recently ruled that an employee's breach of the obligation to obey an employer's instructions constitutes a violation of the employer's intangible interests. The court explained that irrespective of the working time system in which an employee is employed, he or she is bound by an employer's instructions concerning work, unless they are against the law.

New approach to taxation of severance benefits introduced
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 05 October 2016

The Ministry of Finance recently issued a general interpretation of the Personal Income Tax Act 1991 provisions regarding the tax exemption applicable to employee compensation received under voluntary redundancy programmes. The interpretation introduces a new approach to the taxation of voluntary redundancy benefits and will likely lead to the unification of the tax administration's practice in this respect.

New regulations for employers posting employees to Poland
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 03 August 2016

The Act on Posting Employees within the Framework of the Provision of Services recently entered into force, guaranteeing an appropriate level of protection for posted employees. In particular, the act determines the terms and conditions of employment, as well as the principles of administrative cooperation between Polish authorities and EU member states. The act also introduces obligations for foreign employers that post employees to Poland.

Supreme Court judgment on compensation for unlawful termination of employment contract
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 25 May 2016

The Supreme Court recently ruled that an employee was entitled to damages for unlawful termination of employment with notice not exceeding the salary of his statutory notice period, even though it had been contractually extended by the parties. This provision does not apply if the parties to the contract have agreed that an extended notice period be included when calculating damages for unlawful termination.

Recent amendments to labour law – interim regulations
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 09 March 2016

The recent amendments to the Labour Code made long-expected changes regarding fixed-term employment contracts. The amendments aim to eliminate the abuse of fixed-term contracts by employers. As the interim regulations are still relatively ambiguous, employers should carefully examine each case alongside the provisions of the Labour Code, which may govern the particular situation differently from the newly introduced provisions.

New approach to social security contributions on management fees
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 02 December 2015

The Supreme Court recently ruled that a management contract rather than employment status is the legal basis for calculating social security contributions for managers who are registered as self-employed and have management contracts with a company in which they are board members. The decision establishes a legal principle under which members of management boards cannot enjoy the favourable social security benefits available to self-employed persons.

Employee-only right to establish and join unions deemed unconstitutional
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 16 September 2015

The Constitutional Tribunal recently ruled that Article 2(1) of the Trade Unions Act – which grants the right to establish and join a trade union to employees only and not to other persons performing paid work – was unconstitutional. The judgment does not mean that this section of the act has lost its binding force, but it should result in its immediate modification.

Breach of equal treatment in employment principle
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 08 July 2015

In a recent judgment the Supreme Court ruled that in order to assess whether a subsidiary had breached the principle of equal treatment in employment, the circumstances of its employees could be compared to those of employees of its parent company. The judgment also confirmed the court's position on the difference between unequal treatment and discrimination in employment.

Reform of fixed-term agreements
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 13 May 2015

The European Court of Justice recently ruled that the Labour Code provision regarding notice periods applicable to fixed-term employment contracts infringed the requirement to treat fixed-term employees as favourably as permanent employees if their working conditions are comparable. The cabinet recently presented a bill that proposes to eliminate the Labour Code's discriminatory provisions.

Maximum duration of temporary work: existing practice and proposed changes
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 11 February 2015

The Ministry of Labour and Social Policy has recently acknowledged the need to amend the temporary agency regime. If the envisaged changes are adopted, they will significantly influence the temporary employment agency market. Work agencies will no longer be able to assign the same temporary employee to one user-undertaking over many years by juggling the employee between themselves.

Termination of post-employment non-compete agreement
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 17 December 2014

The Supreme Court recently confirmed that it is possible to terminate a post-employment non-compete agreement with notice on condition that the agreement includes prerequisites for such termination. The rules under which a post-employment non-compete agreement can be concluded are set out in the Labour Code.

Contractual shortening of notice period possible for employees
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 24 September 2014

The Supreme Court recently ruled that notice periods may be shortened, but only when the notice is served by the employee and the shorter notice period is more favourable to that employee than the statutory one. The judgment outlines the court's position on the autonomy of will of parties to employment contracts in respect of the length of notice periods. However, it is still not possible to shorten the notice period in case of termination by an employer.

Non-discrimination of fixed-term employees
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 16 July 2014

The European Court of Justice recently ruled that the Polish Labour Code provision regarding notice periods applicable to fixed-term employment contracts infringes the prohibition against treating fixed-term employees less favourably than permanent employees if the situations of those employees are comparable. It remains to be seen how the judgment will affect Polish court practice in similar matters.

New approach to non-compete compensations for self-employed contractors
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 09 April 2014

It is common practice in Poland for companies to hire individuals based on civil law contracts (ie, those for self-employed contractors), as opposed to employment agreements. In this regard, the Supreme Court recently issued a ruling concerning the issue of compensation for a self-employed individual in return for a post-termination non-compete obligation.

New ruling affects social security of seconded employees
Sołtysiński Kawecki & Szlęzak
  • Poland
  • 29 January 2014

The Supreme Court recently issued an important ruling concerning the secondment of an employee to another EU member state, in view of the legal characteristics of a business trip. The ruling materially affects social security obligations with respect to the remuneration of employees posted abroad, and confirms and strengthens the court's general position concerning the narrow understanding of the term 'business trip'.

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