ESSENTIAL HR UPDATE New Developments in Employee Benefits and Labo u r Law

1. ESSENTIAL HR UPDATENew Developments in Employee Benefits and Labour Law Wednesday, 24 November 2004 Warsaw, Poland Harassment and Discrimination Legislation “Who’s Protected?” ZUZANNA ZAKRZEWSKA AssociateCMS Cameron McKenna, Warsaw Email: ZZ@cmck.com Phone: +48-22-520-5605

2. Source of anti-discrimination provisions in Polish law Provisions concerning discrimination and harassment are included in the Labour Code (Articles: 9 §4, 112, 113, 18 §3, 183a – 185, 94 sec. 2b, 941) Most„anti-discrimination” provisions were entered into the Labour Code in November 2003, and have been in force since 1 January 2004

3. Definition of discrimination and harassment provided by the Polish Labour Code (1) Rule of anti-discrimination in employment – employees shall be treated equally within the scope of: entering and terminating the employment relationship, terms of employment, promotion, in particular without prejudice to: gender,age, disability, race, religion, nationality, political beliefs, trade union membership, ethnicorigin, religion belief, sexual orientation, employment for limited or unlimited period or full or parttime.

4. Direct and Indirect Discrimination Direct discrimination – where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to above Indirect discrimination – where an apparently neutral provision, criterion or practice would place persons having a particularreligion or belief, disability, age, or sexual orientation at a particular disadvantagecompared with another persons An instruction to discriminate against persons is also deemed as discrimination

5. Harassment and sexual harassment as forms of discrimination Harassment - behaviour which aims at or results in violating an employee’s dignity, or humiliating or intimidating him/her Sexual harassment – any unwelcome(by the recipient) conduct of a sexual nature or referring to the employee’s sex, which aims or results in violating an employee’s dignity, or humiliating or demeaning him/her; such behaviour may consist of physical, verbal or non-verbal conduct

6. What does sexual harassment exactly mean? (1) Unacceptable conduct – if such conduct is unwanted,unreasonable and offensive to the recipient (it is up to eachindividual to determine what behaviour is acceptable to them, andwhat they regard as an offensive); the unwanted nature of theconductdistinguishes sexual harassment from friendlybehaviour whichis welcome and mutual Issues related to the way of notifying that a certain behaviour is unwanted – potential provocation

7. What does sexual harassment exactly mean? (2) What behaviour may be regarded as sexual harassment: making proposals, asking for or requiring sexual advantages; offensive flirting; offensive comments on appearance or dress sexual blackmail Physical sexual harassment may be regarded as suggestive looks or stares, gestures and unnecessarytouches

8. Who is protected ? Employees, i.e. persons employed on the basis of an employment contract (regardless its kind, e.g. limited, unlimited period, full or part-time, etc.) Not only women

9. What actions do not infringe the anti-discrimination rule (1) If an employee has not been employed due to a discriminatingreason, however, it was justified by the particular work,conditions involved or professional requirementsaddressed to employees Terminating terms of employment within the scope of workinghours if it is justified by reasons not concerning an employee

10. What actions do not infringe the anti-discrimination rule (2) Differing the legal situation of an employee due to parenthood protection, age or disability Establishing the terms of hiring and firing employees,terms of remuneration and promotion, and access to vocationaltraining, taking into considerationthe length of employment

11. What actions do not infringe the anti-discrimination rule (3) Actions undertaken within a defined period aimed to even outthe rights and opportunities of all of a vast majority of employees

12. When an employee may be regarded as being discriminated or harassed If an employer, basing on grounds referred to in the definition of discrimination, differs the situation of an employee in such a way that, as a result of such treatment, an employer: refuses to enter into an employment relationship or terminates an employment relationship unfavourably establishes the terms of remuneration or other terms of employment, or omits an employee when promoting or granting other employment benefits omits an employee when selecting employees for vocational training

13. Employer’s Responsibility Counteractingthe discrimination in employment as the employer’s basic duty Ensuring that no discriminatory behaviour is tolerated by the employer, examples: relevant provisions included in an employment contracts (e.g. obliging employees not to act contrary to the anti- discrimination policy and specific provisions applicable by the employer in this respect) introducing a code of conduct related to anti-discrimination and sexual harassment informing employees about the employer’s policy on anti- discrimination and sexual harassment issues ensuring the effective process of filing employee’s discrimination claims training key management

14. Legal sanctions for infringing the anti-discrimination rule (1) Provisions of the employment contract, collective labour agreements, by-laws and statutes defining rights and obligations of the parties to an employment relationship are legally null and void Claims of the employees: compensation claim for infringing the equal treatment rule compensation claim based on the Civil Code provisions – violation of moral rights

15. Legal sanctions on the employer for infringing the anti-discrimination rule (2) Amounts which may be claimed by an employee: the Labour Code provides only for the minimum amount of the compensation, which currently is PLN 824 the Civil Code does not either provide for any limits of possible amounts of compensation The Civil Code only provides a general principlewhereby the due compensation should not exceed the severity of the damage

16. Legal sanctions on the employer for infringing the anti-discrimination rule (3) An employee is entitled to terminate the employment contract without notice (Article 55 §11 of the Labour Code) Burden of proof always lies on an employer An employment relationship may not be terminated due to the reason that an employee used his/her rights related to the anti- discrimination rule

17. THANK YOU