This summary of age discrimination law in Poland has been prepared by Raczkowski, the Ius Laboris member for Poland: www.raczkowski.eu
Overview
Poland has a national employment law system. Local employment laws do not exist at the state level. In practice, the role of collective bargaining agreements is rather moderate, even though the intention of the social policy is to promote regulation of employment through collective bargaining.
Polish legislation prohibits “any discrimination” in the field of employment on the grounds of age.
Age discrimination was first prohibited in 1996. The new law, however, had not properly structured sanctions and hence had little practical impact. It was not until 2004 when fully fledged age discrimination laws were introduced to properly implement the European directives (2000/43/EC of 29 June 2000, 2000/78/EC of 27 November 2000 and 2002/73/EC of 23 September 2002). In 2011, the new legislation on equal treatment came into force, which widened the scope of protection against age discrimination so that not only employees, but also civil contractors were covered.
Due the lack of robust legislation surrounding age-based discrimination issue and the low number of relevant case laws, direct discrimination is still very much disputable.
WHO'S COVERED?
Polish age discrimination law covers employees, job applicants, self-employed and those working on the basis of service contracts or other civil law contracts. There are no categories of employees who are generally excluded from the protection against age discrimination.
Agency workers must also be treated equally as employees employed by the end-user entity.
There are no age limits to protection against discrimination. Discrimination against all age groups, young and old, is prohibited.
WHAT ENFORCEMENT/REMEDIES EXIST?
An employee who has been discriminated against may be able to claim “compensation” equal to the full damage (actual loss and lost profits) incurred, but not smaller than the amount of minimum national remunerations (in 2023 approx. €800 per month). Employees’ claims are brought before the labour court.
When the discrimination has caused no pecuniary damage to the employee, the employee may still claim “compensation” which then takes the form of damages for moral injury (e.g. injury to feelings). In such cases the amount should then be established by the court with regard to the extent of the employee’s suffering. It does not have a “punitive” character. If an act of discrimination causes moral injury, the employee may also pursue other claims warranted by the Civil Code, such as an apology in an appropriate form and demand that the discriminatory treatment be ceased.
There is no specific body enforcing the principle of equal treatment. Cases are brought before common courts.
For the period 2020-2023, Government Plenipotentiary for Equal Treatment activities are geared in particular towards supporting groups at risk of discrimination in the labour market on the basis of, inter alia, age, as well as promoting diversity management in the workplace.
There are no criminal sanctions for breach of the principle of equal treatment, however in specific cases, discriminatory behaviour may fall under the general criminal sanction for malicious breach of employment law. Such a criminal offence is subject to fine up to approx. € 242,000, restriction of freedom or imprisonment up to 2 years.
HOW COMMON ARE CLAIMS?
When it comes to statistics, the number of cases regarding discrimination and equal treatment is constantly increasing.
Even though in practice, instances of unequal treatment based on age are very common, claims based solely on age discrimination are not very common. This is because the public is often unaware that acts and decisions which are so extremely frequent are in fact illegal. However, the awareness of the employees in this respect is slowly increasing.
The most common claims are claims for unfair dismissal. Employees often “add” claims for overtime, and claims for discrimination in this context. The latter however, is rarely based on age and most often on other strands of discrimination. Claims that are brought are often poorly thought out and used as an instrument of pressure for settlement rather than a structured court action.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
As the claims based on age discrimination are still not very common we can only discuss our expectations and a few examples.
Acts of unequal treatment on the basis of age most often occur in recruitment. Job advertisements “young waitress needed” or “we offer a job in a young, dynamic team” are common.
The most typical aged-based discrimination cases are connected with employees who due to reaching the retirement age are selected for redundancy or are forced to resign from work.
The trickiest issue is the legislation itself which is very unclear on many important issues and on some occasions reaches further than the directive – e.g. open catalogue of discriminatory criteria.
ARE THERE SPECIFIC EXCEPTIONS IN YOUR LAW?
In general, the following are the exceptions from the principle of equal treatment:
refusal to hire an employee, if it is justified by the type of work and conditions of performance of work but only if the age is a real and decisive professional requirement for employment;
differentiation based on parenthood or disability (positive action - reverse discrimination);
differentiation based on length of service (seniority).
Another very important exception from the protection against age discrimination was shaped by case law – this is mandatory retirement upon reaching retirement age (see below – interesting cases).
RETIREMENT AGES
The statutory pension age in Poland is 65 years for men and 60 years for women.
Retirement benefits in Poland are statutory. Next to mandatory retirement social security premiums to be paid on employees’ remuneration (financed by both the employer and the employee), employers in Poland are obliged to set up an Employee Capital Plan or an Employee Pension Scheme. Both of those programs are aimed at improving financial situation of employees by giving them greater security at retirement age. Savings under the Employee Capital Plan (which is mandatory in case of absence of voluntary Employee Pension Scheme) are created jointly by employees, companies and the state.
INTERESTING CASES
There is a set of cases which certainly is interesting from the perspective of age discrimination.
The Polish Supreme Court used to consistently rule that reaching retirement age constitutes a legitimate criterion for selecting employees for dismissals based on economic reasons (II PK 19/05, ruling of 2005.09.29, II PK 102/07, ruling of 2008.01.14, II PZP 13/08, ruling of 2009.01.21 and I PK 239/13, ruling of 2014.02.06). However, post-implementation of the anti-discrimination EU directives, the Supreme Court established the rule that reaching retirement agedoes not justify depreviing an employee of the possibility of further employment. Therefore, an employer wishing to terminate employment contract of an employee in retirement age who has the right to a retirement pension must refer to objective and specific reasons attributable to the employee (e.g. performance-related) or to the employer. These reasons may be indirectly connected with the employee’s age, however age itself cannot be the sole termination reason. Such termination would be considered as indirect age discrimination (II PK 12/22, ruling of 2022.09.15; III PK 55/17 ruling of 2018.06.13; II PSKP 120/21 ruling of 2022.10.26).