Country report, gender equality : how are EU rules transposed into national law? : Poland 2021.
Date: 2021-09-23
Institutions: Directorate-General for Justice and Consumers
Subjects: Poland, age discrimination, application of EU law, equal pay, equal treatment, gender equality, maternity leave, national law, parental leave, paternity leave, pension scheme, report, sexual discrimination, sexual harassment, social security

Poland 

2021 

EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.2 Gender Equality 

European Commission 
B-1049 Brussels

EUROPEAN COMMISSION 

Country report  

Gender equality 

How are EU rules transposed into 
national law? 

Poland 

Anna Cybulko 

Reporting period 1 January 2020 – 1 January 2021 

2021  Directorate-General for Justice and Consumers

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Luxembourg: Publications Office of the European Union, 2021 

© European Union, 2021 

PDF 

 ISBN 978-92-76-32219-1 

ISSN 2600-0164 

doi:10.2838/253908  

DS-BD-21-011-EN-N 

Country report - gender equality – Poland - 2021 

CONTENTS 

1 

2 

3 

4 

5 

6 

7 

Introduction ............................................................................................... 5 
Basic structure of the national legal system ............................................ 5 
1.1 
List of main legislation transposing and implementing the directives .......... 6 
1.2 
1.3 
Sources of law .................................................................................... 7 
General legal framework .......................................................................... 10 
Constitution ...................................................................................... 10 
2.1 
Equal treatment legislation ................................................................. 10 
2.2 
Implementation of central concepts ......................................................... 12 
General (legal) context....................................................................... 12 
3.1 
Sex/gender/transgender .................................................................... 13 
3.2 
Direct sex discrimination .................................................................... 14 
3.3 
3.4 
Indirect sex discrimination .................................................................. 15 
3.5  Multiple discrimination and intersectional discrimination ......................... 17 
Positive action ................................................................................... 18 
3.6 
Harassment and sexual harassment ..................................................... 21 
3.7 
Instruction to discriminate .................................................................. 24 
3.8 
3.9 
Other forms of discrimination .............................................................. 24 
3.10  Evaluation of implementation .............................................................. 24 
3.11  Remaining issues ............................................................................... 26 
Equal pay and equal treatment at work (Article 157 of the Treaty on the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54)
 ................................................................................................................. 28 
General (legal) context....................................................................... 28 
4.1 
Equal pay ......................................................................................... 35 
4.2 
Access to work, working conditions and dismissal .................................. 46 
4.3 
Evaluation of implementation .............................................................. 50 
4.4 
4.5 
Remaining issues ............................................................................... 50 
Pregnancy, maternity, and leave related to work-life balance for workers 
(Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and 
2019/1158) ............................................................................................. 53 
General (legal) context....................................................................... 53 
5.1 
Pregnancy and maternity protection .................................................... 58 
5.2 
5.3  Maternity leave ................................................................................. 66 
Adoption leave .................................................................................. 73 
5.4 
Parental leave ................................................................................... 74 
5.5 
Paternity leave .................................................................................. 83 
5.6 
Time off for force majeure .................................................................. 83 
5.7 
Care leave ........................................................................................ 84 
5.8 
5.9 
Leave in relation to surrogacy ............................................................. 85 
5.10  Flexible working time arrangements..................................................... 85 
5.11  Evaluation of implementation .............................................................. 88 
5.12  Remaining issues ............................................................................... 89 
Occupational social security schemes (Chapter 2 of Directive 2006/54) .. 91 
General (legal) context....................................................................... 91 
6.1 
Direct and indirect discrimination ........................................................ 93 
6.2 
6.3 
Personal scope .................................................................................. 93 
6.4  Material scope ................................................................................... 94 
Exclusions ........................................................................................ 95 
6.5 
6.6 
Laws and case law falling under the examples of sex discrimination mentioned 
in Article 9 of Directive 2006/54 .......................................................... 95 
6.7 
Actuarial factors ................................................................................ 95 
6.8 
Difficulties ........................................................................................ 95 
Evaluation of implementation .............................................................. 95 
6.9 
6.10  Remaining issues ............................................................................... 96 
Statutory schemes of social security (Directive 79/7/EEC) ...................... 97 

3 

 
 
Country report - gender equality – Poland - 2021 

8 

9 

7.1 
7.2 

General (legal) context....................................................................... 97 
Implementation  of  the  principle  of  equal  treatment  for  men  and  women  in 
matters of social security ................................................................... 101 
7.3 
Personal scope ................................................................................. 102 
7.4  Material scope .................................................................................. 103 
Exclusions ....................................................................................... 103 
7.5 
Actuarial factors ............................................................................... 105 
7.6 
Difficulties ....................................................................................... 105 
7.7 
Evaluation of implementation ............................................................. 105 
7.8 
7.9 
Remaining issues .............................................................................. 105 
Self-employed workers (Directive 2010/41/EU and some relevant 
provisions of the Recast Directive) ......................................................... 106 
General (legal) context...................................................................... 106 
8.1 
Implementation of Directive 2010/41/EU ............................................. 109 
8.2 
8.3 
Personal scope ................................................................................. 109 
8.4  Material scope .................................................................................. 110 
8.5 
Positive action .................................................................................. 111 
Social protection .............................................................................. 111 
8.6 
8.7  Maternity benefits............................................................................. 112 
Occupational social security ............................................................... 115 
8.8 
8.9 
Prohibition of discrimination ............................................................... 115 
8.10  Evaluation of implementation ............................................................. 115 
8.11  Remaining issues .............................................................................. 116 
Goods and services (Directive 2004/113) .............................................. 117 
9.1 
General (legal) context...................................................................... 117 
Prohibition of direct and indirect discrimination .................................... 117 
9.2 
9.3  Material scope .................................................................................. 117 
Exceptions ....................................................................................... 118 
9.4 
Justification of differences in treatment ............................................... 118 
9.5 
Actuarial factors ............................................................................... 119 
9.6 
9.7 
Interpretation  of  exception  contained  in  Article  5(2)  of  Directive  2004/113
 ...................................................................................................... 119 
Positive action measures (Article 6 of Directive 2004/113) ..................... 119 
9.8 
Specific problems related to pregnancy, maternity or parenthood ........... 119 
9.9 
9.10  Evaluation of implementation ............................................................. 121 
9.11  Remaining issues .............................................................................. 122 

10  Violence against women and domestic violence in relation to the Istanbul 

Convention ............................................................................................. 123 
10.1  General (legal) context...................................................................... 123 
10.2  Ratification of the Istanbul Convention ................................................ 132 

11  Compliance and enforcement aspects (horizontal provisions of all 

directives) .............................................................................................. 135 
11.1  General (legal) context...................................................................... 135 
11.2  Victimisation .................................................................................... 137 
11.3  Access to courts ............................................................................... 138 
11.4  Horizontal effect of the applicable law ................................................. 141 
11.5  Burden of proof ................................................................................ 142 
11.6  Remedies and sanctions .................................................................... 144 
11.7  Equality body ................................................................................... 150 
11.8  Social partners ................................................................................. 151 
11.9  Other relevant bodies........................................................................ 152 
11.10  Evaluation of implementation ............................................................. 153 
11.11  Remaining issues .............................................................................. 153 
12  Overall assessment ................................................................................ 154 
Bibliography ................................................................................................... 160 

4 

 
 
1 

Introduction 

1.1  Basic structure of the national legal system 

Poland  is  a  unified  state  with  a  uniform  legal  system  of  continental  type.  The  supreme 
legal act in Poland is the 1997 Constitution,1 which, among other things, declares that the 
Republic  of  Poland  is  a  democratic  state  that  follows  the  rule  of  law,  implementing  the 
principles of social justice (Article 2). The Constitution also determines the state model, 
the powers of individual state organs, the relevant sources of law, as well as declaring the 
freedoms, rights and obligations of persons and citizens. Other universal sources of law 
are  laws  (parliamentary  acts),  ordinances  (executive  acts)  and  ratified  international 
agreements  (Article  87  of  the  Constitution).  According  to  Article  95  of  the  Constitution, 
legislative power in the Republic of Poland shall be exercised by the Parliament, consisting 
of two Chambers (the Sejm and the Senate). Legislative initiative is mostly exercised by 
the  Government.  Draft  laws  may  also  be  presented  by  groups  of  15  Deputies  or  15 
Senators,  as  well  as  the  President  and  at  least  100 000  citizens  (Article  118  of  the 
Constitution). In order for a draft to become law, it has to be passed by a regular majority 
of  votes  by  both  Chambers  of  Parliament  and  receive  the  approval  (signature)  of  the 
President,  who  is  also  the  body  ordering  its  promulgation  in  the  Journal  of  Laws  of  the 
Republic of Poland (Dziennik Ustaw, or Dz.U.; hereafter JoL). The President may refuse to 
sign  the  law  and  refer  the  bill  with  his  reasoned  objections  back  to  the  Sejm  for 
reconsideration; such presidential veto might be overridden by the Sejm with a qualified 
majority.  The  Council  of  Ministers  (the  Prime  Minister  and  particular  ministers)  are 
authorised to enact executive ordinances when there is a specific legal basis (delegation) 
for it in an act issued by Parliament (Article 92 of the Constitution). 

The  system  of  administration  of  justice  in  Poland  consists  of  common  courts  (regional, 
district  and  appellate),  administrative  courts  and  military  courts  (Article  175).  The 
Supreme  Court  (SC)  performs  supervision  over  the  common  and  military  courts 
(Article 183(1)  of  the  Constitution).  The  Supreme  Administrative  Court  and  other 
administrative  courts  exercise  control  over  the  activities  of  the  public  executive  power 
(Article  185).  Together  with  the  Constitutional  Tribunal  and  the  Tribunal  of  State  those 
courts form a separate power, which in theory should be independent from the other state 
powers (Article 173(1) of the Constitution).2 Legislative acts (laws and ordinances) can be 
subjected to constitutional control exercised by the Constitutional Tribunal. The President 
of  the  Republic  may,  prior  to  signing  a  bill,  refer  it  to  the  Constitutional  Tribunal  for 
adjudication upon its conformity to the Constitution. He is obliged to refuse to sign a bill 
which the Constitutional Tribunal has found not to be in conformity with the Constitution 
(Article 122 of the Constitution). The President may also refer a piece of legislation to the 
Constitutional Tribunal after having signed it and after it has become binding, following its 
publication in the official journal of laws. If the Tribunal finds such a law to be entirely or 
partially unconstitutional, it will either lose its binding authority entirely, or with respect 
to the unconstitutional provisions (or parts thereof), however, only after the publication of 
the  Constitutional  Tribunal  ruling  in  the  official  journal  (Article 190).  Every  person  is 
empowered to lodge an individual constitutional complaint challenging the constitutionality 
of a law, yet only in the situation when this law was the basis for an individual and final 
decision or verdict in his or her case (Article 79 of the Constitution). They may also refer 
to the Ombudsperson (appointed by the Parliament, independent from the Government), 
officially the Commissioner for Human Rights (RPO). As of 2010, the RPO, by virtue of the 
Law  of  3  December  2010  on  the  Implementation  of  (some)  EU  Provisions  on  Equal 

1   The Constitution of the Republic of Poland of 2 April 1997 published in the Journal of Laws of the Republic 

of Poland (JoL No. 78 Item 483 with further amendments). For an English translation see: 
http://www.sejm.gov.pl/prawo/konst/angielski/konse.htm. 

2   But in the opinion of the author of this report, since 2015 they are, in practice, dependent on the leader of 
ruling party ‘Prawo i Sprawiedliwość (PiS)’. Additionally, as some of the new judges of the Constitutional 
Tribunal were appointed in breach of law, some do believe that the verdicts of the Constitutional Tribunal 
passed by these judges will not be valid. 

5 

 
 
 
  
 
Treatment  (hereafter  Anti-Discrimination  Law),  also  exercises  the  tasks  of  the  equality 
body,3 with a motion for assistance in the protection of one’s freedoms or rights infringed 
by organs of public authorities (Article 80 of the Constitution). In such cases, the RPO may 
initiate  proceedings  on  behalf  of  the  citizen  in  civil,  penal  or  administrative  matters,  as 
well  as  join  proceedings  that  are  already  in  progress  (Article  14  of  the  Law  on  the 
Commissioner for Human Rights). In addition to the RPO’s activities as the equality body 
(responsible  for  the  monitoring  of  preservation  of  the  equal  treatment  rule  in  public 
policies)  there  is  a  special  office  built  into  the  state  administration  in  the  form  of  the 
Government  Plenipotentiary  for  Equal  Treatment,  whose  competences  (partially  in 
elimination of discrimination overlapping with the competences of RPO) are also currently 
defined by the Anti-Discrimination Law. In January 2016, the Government Plenipotentiary 
for Equal Treatment was renamed to the Government Plenipotentiary for Civil Society and 
Equal Treatment as a result of additional duties being transferred to the plenipotentiary’s 
office.4  

1.2  List of main legislation transposing and implementing the directives 

The main relevant legislation on gender equality and the prohibition of sex discrimination 
includes:  

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

Constitution  of  the  Republic  of  Poland  (Konstytucja  Rzeczypospolitej  Polskiej)  of  2 
April 1997, JoL 1997 No. 78 Item 483) (hereafter: Constitution); 
Law  on  the  Commissioner  for  Human  Rights  (Ustawa  o  Rzeczniku  Praw 
Obywatelskich)  of  15  July  1987,  consolidated  text  JoL  2017  Item  958  with 
amendments; 
Labour  Code  Act  (Ustawa:  Kodeks  Pracy)  of  26  June  1974  (hereafter:  LC), 
consolidated text JoL 2018 Item 108, with amendments; 
Amendments  to  the  LC  implementing  Equality  Directives  in  employment  mostly 
covered  by:  Law  of  24  August  2001,  JoL  2001  No.  128  Item  1405;  Law  of  21 
December, JoL 2001 No. 154 Item 1805; Law of 14 November 2003, JoL No. 213 
Item  2081;  Law  of  18  August  2006,  JoL  2006  No.  217  Item  1587;  Law  of  21 
November 2008, JoL 2008 No. 223, Item 1460; Law of 6 December 2008, JoL 2008 
No. 234 Item 1654; Law of 28 May 2013, JoL 2013 Item 675; Law of 24 July 2015, 
JoL 2015 Item 1270; Law of 22 June 2016, JoL of 2016 Item 1053, Law of 16 May 
2019, JoL 2019 Item 1043; 
Law on the Promotion of Employment and Institutions of the Labour Market (Ustawa 
o promocji zatrudnienia i instytucjach rynku pracy) of 20 April 2004 hereafter Law 
on Promotion of Employment, consolidated text 2018 Item 1265; 
Law on the Social Insurance System (Ustawa o systemie ubezpieczeń społecznych) 
of 13 October 1998 consolidated text JoL 2017, Item 1778; 
Law on Pensions from the Social Insurance Fund (Ustawa o emeryturach i rentach z 
Funduszu  Ubezpieczeń  Społecznych)  of  17  December  1998  consolidated  text  JoL 
2018 Item 1270 with amendments (hereafter Law on Pensions); 
Law  on  Social  Insurance  for  Farmers  (Ustawa  o  ubezpieczeniach  społecznych 
rolników) of 20 December 1990 consolidated text JoL 2017, Item 2336; 
Law  on  Occupational  Pension  Schemes  (Ustawa  o  pracowniczych  programach 
emerytalnych) of 20 April 2004, (hereafter also Law on PPE) consolidated text JoL 
2016 Item 1449; 
Law  on  the  Occupational  Capital  Programmes  (Ustawa  o  pracowniczych  planach 
kapitałowych) of 4 October 2018 (hereafter also Law on PPK) JoL 2018 Item 2215; 
Law  on  Pecuniary  Social  Insurance  Benefits  in  Respect  of  Sickness  and  Maternity 
(Ustawa o świadczeniach pieniężnych z ubezpieczenia społecznego w razie choroby i 
macierzyństwa) of 25 June 1999 consolidated text JoL 2019 Item 645 (hereafter Law 
on Maternity Benefits); 

3   See more: Section 11.7 of this report.  
4   See more: Section 11.9. 

6 

 
 
 
 
 
• 

• 

• 

• 

Law on Social Insurance in Respect of Accidents at Work and Occupational Diseases 
(Ustawa  o  ubezpieczeniu  społecznym  z  tytułu  wypadków  przy  pracy  i  chorób 
zawodowych) of 30 October 2002 consolidated text JoL 2017 Item 1773; 
Law on Family Benefits (Ustawa o świadczeniach rodzinnych) of 28 November 2003, 
consolidated text JoL 2018 Item 2220 with amendments; 
Law  on  Employment  of  Temporary  Workers  (Ustawa  o  zatrudnianiu  pracowników 
tymczasowych) of 9 July 2003 consolidated text JoL 2018, Item 594; 
Law on Capital Pensions (Ustawa o emeryturach kapitałowych) of 21 November 2008 
consolidated text JoL 2018 Item 926 with amendments. 

Law  on  the  Implementation  of  some  EU  Provisions  on  Equal  Treatment  (Ustawa  o 
wdrożeniu  niektórych  przepisów  Unii  Europejskiej  w  zakresie  równego  traktowania)  of 
3 December  2010  consolidated  text  JoL  2016  Item  1219  (hereafter  Anti-Discrimination 
Law),  implements  the  following  Directives:  86/613/EEC,  2000/43/EC,  2000/78/EC, 
2004/113/EC  and  2006/54/EC.  From  2016  it  also  refers  to  Directive  2014/54/EU  on 
measures facilitating the exercise of rights conferred on workers in the context of freedom 
of movement for workers. 

It should be noted that it is not feasible to explain, for each law mentioned above, what 
EU directive / treaty provisions this piece of legislation transposes, due to the fact that in 
many  acts,  the  transposition  was  made  by  amendments  of  already  existing  laws 
(sometimes, as in  the  case  of the  Labour Code, with several consecutive modifications) 
and in most cases the applicable directive was not mentioned at all (or mentioned only in 
the  reasoning  of  the  draft  law).  The  legislative  requirement  to  refer  explicitly  to  EU 
directives in the footnote of every transposing act has been introduced only recently. As 
far as the author was able to directly decode the reference to the directive, it has been 
mentioned in the text of the report.  

1.3  Sources of law 

The 1997 Constitution plays an essential role in the legal framework on gender equality in 
Poland. It contains general equality and anti-discrimination clauses, as well as a guarantee 
for equality between men and women. Amongst ordinary laws, the most important role in 
the  field  of  gender  equality  in  employment  and  social  security  is  played  by  the  Labour 
Code and the Anti-Discrimination Law, as well as the implementing legislation adopted on 
the  basis  of  these  laws.  Also  of  certain  importance  is  the  Law  of  20  April  2004  on  the 
promotion of employment and institutions of the labour market,5 which implemented many 
EU directives, among others, recast directive 2006/54/EC. 

Poland has ratified all of the most important human rights treaties – among others, those 
fundamental for gender equality such as: the UN Convention on the elimination of all forms 
of  discrimination  against  women  (CEDAW)  ratified  by  Poland  in  1982,6  the  Council  of 
Europe Convention on Action against Trafficking of Human Beings (Warsaw Convention),7 
as well as the equality and anti-discrimination clauses contained in other international and 
regional  treaties  ratified  by  Poland,8  with  the  exception  of  the  anti-discrimination 
Additional Protocol No. 12 to the European Convention on Human Rights (ECHR).9 Poland 

5   By the institutions of the labour market, this act understands: 1) public employment services; 2) voluntary 
labour corps; 3) employment agencies; 4) training institutions; 5) social dialogue institutions; 6) local 
partnership institutions. 

6   Ratified on the basis of the Law of 18 July 1980 (JoL 1982, No. 10, Item 71). 
7   Ratified on the basis of the Law of 17 November 2008 (JoL 2009, No. 20, Item 107).  
8   In particular, provided for Article 2(1) of the International Covenant on Civil and Political Rights (ratified by 

Poland in 1977 (JoL 1977, No. 38, Item 167)) and Article 2(2) of the International Covenant on the 
Economic, Social and Cultural Rights (ratified in 1977 (JoL 1977, No. 38, Item 169)), in Article 14 of the 
Convention on the Protection of Human Rights and Fundamental Freedoms (ratified in 1993 (JoL 1993, No. 
61, Item 284) hereafter: ECHR), and a number of other conventions of a more specific nature.  

9   The decision on this issue has not yet been taken, as announced by the Minister of Foreign Affairs, as asked 

in 2016 by the RPO. https://www.rpo.gov.pl/pl/content/rzad-nie-podjal-decyzji-w-sprawie-ratyfikacji-
protokolu-nr-12-do-europejskiej-konwencji-praw. 

7 

 
 
 
 
 
 
 
ratified also The Council of Europe Convention on combating violence against women, in 
particular, domestic violence (Istanbul Convention),10 although in recent years the ruling 
party Prawo i Sprawiedliwość has undertaken measures to weaken its influence, or even 
to abolish it.11  

Article 91(1) of the Constitution describes the status of international law in the Polish legal 
system and states that ratified international agreements, after their announcement in the 
Journal of Laws of the Republic of Poland, form part of the national legal order and are 
directly  applicable  (unless  for  their  application  the  adoption  of  a  national  legal  act  is 
necessary).  Poland  has  implemented,  albeit  sometimes  with  delay,  all  the  EU  equality 
directives. 

The Polish legal system is generally based on written law. Formally speaking, case law is 
not  included  in  the  constitutional  catalogue  of  sources  of  law.  This  does  not  mean, 
however, that in practice there is no binding force of such sources in situations other than 
the one in which a case was decided. The importance of case law varies according to the 
nature of the judicial authority from which it originates. As already mentioned, judgments 
of  the  Constitutional  Tribunal  on  the  incompatibility  of  a  given  provision  with  the 
Constitution  invalidate  the  law  at  stake.  This  means  that  such  a  provision  will  lose  its 
binding  force  entirely,  or  with  respect  to  the  unconstitutional  provisions  after  the 
publication of the ruling in the official journal.  

The decisions of the Supreme Court – as a rule – do not formally bind lower courts in other 
cases,12 however in practice they often do. The common formula used is that they bind 
only with the ‘power of authority’ of the Supreme Court. It means that the courts of lower 
instance  may  adopt  a  different  interpretation  of  the  provision  in  their  cases.  They  risk, 
however, that their verdicts will be repealed in the course of further proceedings,  which 
usually prevents them from such actions. Differences in interpretation also appear, albeit 
not  very  frequently,  in  the  jurisprudence  of  the  Supreme  Court  itself.  Only  resolutions 
entered into the catalogue of legal principles bind the different Supreme Court’s judges’ 
panels  in  other  cases.  Another  way  to  unify  the  interpretation  of  law  is  to  consider  the 
legal  issue  by  a  wider  composition  of  the  Supreme  Court  than  the  usual  three-judges 
panel. This may be a panel of seven judges, the entire chamber, joint chambers or the full 
bench of the Supreme Court (which occurs very seldom). Such a discrepancy within the 
boundaries of the Supreme Court itself, although unfavourable – since it introduces doubts 
about  the  prevailing  line  of  Supreme  Court  jurisprudence  among  lower  courts  –  is, 
however,  at  times  unavoidable.  It  would  be  unthinkable  that  a  ruling  of  three  judges, 
which  is  the  usual  composition  of  a  panel  of  the  Supreme  Court,  would  prevent  other 
judges of the same court from expressing their own views.  

Scholarly  interpretations  of  legal  provisions  do  not  have  the  status  of  a  source  of  law, 
either.  However,  they  often  de  facto  shape  the  jurisprudence  of  courts,  on  the  basis  of 
their scientific authority.  

Legal opinions of the RPO do not constitute a source of the law, either; this body does not 
have any judicial powers.  
Some consider the State  Labour Inspectorate (PIP) to be a quasi-judicial body. It is an 
administrative body whose primary task is to control and monitor employers’ compliance 
with labour law, in particular with the regulations of health and safety at work. However, 

10   Ratified on the basis of the Law of 6 February 2015 (JoL 2015, Item 398). 
11   On 27 July 2020, the Minister of Justice submitted to the Minister of Family, Labour and Social Policy the 
request to initiate the denunciation procedure regarding the Istanbul Convention, indicating that it is 
incompatible with the Polish Constitution and the Polish legal order. Three days later, on 30 July 2020, the 
Prime Minister submitted a request to the Constitutional Tribunal to examine the compatibility of the 
Istanbul Convention with the Polish Constitution. 

12   The only exception is when the appellate court asks the Supreme Court a legal question on a doubtful 

issue. Then the legal opinion expressed in the resolution of the Supreme Court is binding for the court in 
this particular case. 

8 

 
 
 
 
 
 
 
with regard to infringements of the principle of equal treatment in employment, the PIP 
may  only  give  recommendations  to  the  employer  or  refer  the  case  to  court  (but  is  not 
entitled to directly impose administrative penalties, as in some other labour law related 
cases). 

9 

 
2 

General legal framework 

2.1  Constitution 

2.1.1  Constitutional ban on sex discrimination 

There  is  no  separate  Constitutional  provision  explicitly  prohibiting  discrimination  on  the 
grounds of sex. However, the general prohibition of discrimination contained in Article 32 
of the Constitution applies in such a case. Paragraph 1 of this provision provides that all 
persons  shall  be  equal  before  the  law  and  all  persons  shall  have  the  right  to  equal 
treatment  by  public  authorities.  Paragraph  2  also  contains  a  broad  anti-discrimination 
clause (‘No one shall be discriminated against in political, social or economic life for any 
reason  whatsoever’).  This  clause  does  not  specify  any  grounds  of  discrimination; 
nevertheless, it goes without saying that it applies, inter alia, also to sex discrimination. 

2.1.2  Other constitutional protection of equality between men and women  

The  Constitution  addresses  separately  the  issue  of  equality  between  men  and  women. 
Namely, its Article 33 guarantees that  in the Republic of Poland, men  and women shall 
have equal rights in family, political, social and economic life (Paragraph 1).  

It also specifies (in Paragraph 2) that women and men have an equal right to education, 
employment and promotion, to  equal pay for work of  equal value, to  social  security,  to 
hold offices, and to receive public honours and decorations. 

2.2  Equal treatment legislation 

For  three  decades,  Poland  has  had  specific  equal  treatment  legislation.  More  general 
provisions are provided for in the Anti-Discrimination Law, which in the field of employment 
is complementary to the provisions  on  equal treatment  of the Labour  Code (LC) and to 
some other laws (e.g. the Law on Promotion of Employment; the Law on Employment of 
Temporary  Workers;  the  Law  on  the  Social  Insurance  System).  The  principle  of 
complementarity is expressed explicitly in Article 2(2) of the Anti-Discrimination Law which 
states  that  its  Chapter  1  (entitled:  General  provisions)  and  Chapter  2  (The  principle  of 
equal treatment and legal measures aimed at its protection) do not apply to workers, as 
far as the subject matters are regulated by the LC.  

In the case of infringements of the provisions of the Labour Code and the provisions related 
to  social  insurance  and  security,  the  claimant  may  refer  to  specialised  courts  (separate 
departments of district and regional courts, called Departments for Labour and Insurance 
Matters).  These  Departments  specialised  in  labour-related  and  social  security  matters 
apply  partially  different  material  and  procedural  rules13  than  in  regular  civil  cases, 
contained in the Code of Civil Procedure.14  

On the other hand, when the Anti-Discrimination Law is applicable, jurisdiction is exercised 
by  common  civil  departments  of  district  and  regional  courts.  In  such  situations,  unless 
specifically regulated in the Anti-Discrimination Law, common provisions of the Civil Code15 
and Code of Civil Procedure have to be applied.  

The  Anti-Discrimination  Law  in  Article  1  enumerates  sex,  age,  disability,  race,  religion, 
nationality,  ethnic  origin,  belief,  and  sexual  orientation  as  possible  grounds  of 
discrimination. However, at the same time, it makes the scope of the protection against 

13   Ordinance of 18 December 2013 Dz. Urz. Min. Spr. (Official Journal of Ministry of Justice) 2014 Item 334, 
after the amendments introduced by the ordinance of the Minister of Justice of 27 June 2016 Dz. Urz. Min. 
Spr. (Official Journal of Ministry of Justice) 2016 Item 119. 

14   Law of 17 November 1964, consolidated text JoL 2018, Item 1360 with amendments.  
15   Law of 23 April 1064, consolidated text JoL 2018, Item 1025 with amendments. 

10 

 
 
 
 
 
 
 
 
 
 
 
 
 
discrimination  in  the  case  of  any  of  those  grounds  dependent  on  the  fields  in  which 
discrimination  might  occur.  In  consequence,  as  in  EU  law,  the  protection  against  sex 
discrimination  is  narrower  than,  for  instance,  the  protection  in  cases  of  racial 
discrimination. Article 6 of the Anti-Discrimination Law provides that unequal treatment of 
private persons with regard to sex is prohibited only with respect to access and conditions 
of  employment,  social  insurance  benefits  and  services,  housing  services,  goods  and 
acquiring rights and energy, if they are offered publicly. At the same time, Article 5 of this 
Law explicitly excludes protection against gender discrimination in access to educational 
services,  including  higher  education  (point  4),  in  relation  to  the  content  of  media  and 
advertising (Article 6 point 2), as well as in the area of health care (Article 7 a contrario, 
which  is  incompatible  with  EU  law).  On  the  other  hand,  in  all  these  areas,  this  Law 
guarantees  protection  against  discrimination  on  the  grounds  of  race,  ethnic  origin  and 
nationality.  

Such  differentiation  as  to  the  grounds  of  discrimination  does  not  apply  in  the  area  of 
employment. In this field, according to Article 113 and Article 183a LC (as amended by the 
Law  of  16  May  2019),16  discrimination  is  in  any  case  prohibited  on  the  grounds  of,  in 
particular, sex, age, disability, race, religion, nationality, political opinion, membership of 
a  trade  union,  ethnic  origin,  belief,  sexual  orientation,  employment  for  a  specified  or 
unspecified period of time, and part-time employment.17 

16   The Law amending Labour Code and selected other laws, JoL 2019 Item 1043, in force from 6 September 

2019.  

17   In the literature and case law it is noted that these provisions distinguish two types of grounds for 

discrimination. On the one hand, purely subjective, relating to individual features or characteristics of a 
person, and on the other hand, objective, relating to the employment relationship. The Act only uses the 
phrase 'in particular' in relation to the first group, which means that their listing is exemplary (these may 
also include characteristics such as worldview, HIV status, and even appearance, if under certain 
circumstances it may be considered as a ground for discrimination). However, the phrase ‘in particular’ 
does not refer to the second group of objective causes such as ‘a specified or unspecified period of time, 
and part-time employment’, the list of which is enumerative. See: Ruling of Supreme Court of 14 December 
2017 (I PK 342/16). The purpose of the mentioned amendment – as one can read in the explanatory 
memorandum to the Law of 16 May 2019 – was to clarify this controversy by deciding that the list of all 
grounds of discrimination in the LC catalogue is open. In the opinion of the legislator, there are no rational 
premises differentiating discrimination and unequal treatment, and even more so, there is no reason for 
shaping differently the consequences of violation of the above principles by the employer. See: Draft of the 
law with reasoning. Druk Sejmowy (Sejm print) No. 1653) 
http://orka.sejm.gov.pl/Druki8ka.nsf/0/B7BBC29AF503D623C125814500365055/%24File/1653.pdf. 

11 

 
 
 
3 

Implementation of central concepts 

3.1  General (legal) context 

3.1.1  Surveys on the definition, implementation and limits of central concepts of gender 

equality law 

No  surveys  on  the  definitions,  implementation  and  limits  of  central  concepts  of  gender 
equality  in  Polish  law  could  be  identified.18  The  existing,  more  comprehensive  recent 
publications  of Polish authors mostly  focused  on the  examination of  central concepts of 
European  equality  law  and  their  interpretation  by  the  CJEU,  rather  than  on  analyses  of 
these issues as reflected in national legislation or in the case law of Polish courts.19 As an 
exception, the research conducted (albeit on a small scale) by NGO, the Polish Association 
of Anti-Discrimination Law (Polskie Stowarzyszenie Prawa Antydyskryminacyjnego)  may 
be pointed out, following legal expertise published by this Association.20 

3.1.2  Other issues 

Worth noting are problems with the use of the concept of ‘gender’ in Poland. There is no 
good  translation  of  this  term  into  the  Polish  language,  which  would  properly  reflect  the 
meaning given to it in international law (as a notion different from the term ‘sex’, which 
translates into the word ‘płeć’ in Polish, while the English term ‘sex’ in the Polish language 
is used only with reference to sexual intercourse). In the grammar of the Polish language, 
the noun ‘rodzaj’ (kind) may be considered an equivalent to ‘gender’, which for the use of 
different  declinations  can  be  female,  male  or  neutral.  However,  as  a  ground  of 
discrimination without a descriptive explanation, it would be misleading. It is probably the 
reason why in legal terminology and case law this term is not in use. Instead, in the context 
of  discrimination,  only  the  word  ‘sex’  (‘płeć’)  is  applied  in  both  meanings  (gender  and 
sex).21 

18   This lack of survey was characteristic for older literature. See for example: Boruta, I., Równość kobiet i 

mężczyzn w pracy w świetle prawa Wspólnoty Europejskiej. Implikacje dla Polski (Equality of women and 
men under European Community Law. Implication for Poland), Łódz 1996. 

19   See for instance: Zawidzka-Łojek A., Zakaz dyskryminacji ze względu na wiek w prawie Unii Europejskiej 

(Prohibition of age discrimination in European Union law), Instytut Wydawniczy EuroPrawo. 2013. 
20   Compare: Orlicki, M., Zakaz dyskryminacji w umowach ubezpieczenia (Prohibition of discrimination in 

insurances contract) (Expertise No. 05/2015), 
http://ptpa.org.pl/site/assets/files/publikacje/opinie/Opinia_dotyczaca_granic_swobody_ksztaltowania_tres
ci_umowy_ubezpieczenia.pdf. 
This opinion discussing mainly the Test-Achats ruling of the CJEU only marginally touches on the issue of 
indirect sex discrimination in insurances. More comprehensive in this respect is expertise prepared by 
Maliszewska-Nienartowicz, J., ’Kryteria dyskryminacji pośredniej – standardy europejskie a prawo i 
praktyka polskich sądów’ (Criteria for indirect discrimination – European standards and the law and practice 
of Polish courts) (Opinion No. 04/2015), 
http://ptpa.org.pl/site/assets/files/publikacje/opinie/Opinia_kryteria_dyskryminacji_posredniej.pdf. This 
author takes into account, albeit to a small extent, the jurisprudence of Polish courts on sex discrimination 
(generally welcoming the use of the concept of indirect discrimination by Polish courts, despite what she 
believes to be shortcomings in the legal definition of this type of discrimination, both in the Labour Code 
and in the Anti-Discrimination Act).  
It is also worth mentioning older publications of Gonnera, K.: ‘Naruszenie przez pracodawcę obowiązków 
dotyczących przeciwdziałania dyskryminacji i mobbingowi jako samodzielna podstawa roszczeń 
pracowniczych’ (Infringement by the employer of obligations relating to the prohibition of discrimination 
and harassment as an independent basis for workers' claims) 
http://www.ptpa.org.pl/site/assets/files/1028/opinia_ro_z_a_naruszenie_przez_pracodawce_obowia_z_ko_
w_dotycza_cych_przeciwdzialania_dyskryminacji_i_mobbingowi.pdf, and ‘Rozkład ciężaru dowodu w 
sprawach o dyskryminację w zatrudnieniu w świetle orzecznictwa Sądu Najwyższego’ (Distribution of the 
burden of proof in cases of discrimination in employment in light of the Supreme Court's case law) 
http://www.ptpa.org.pl/site/assets/files/1028/ciezar_dowodu_w_sprawach_o_dyskryminacje_21_wrzesnia_
2011.pdf, and in addition, the study of Burek, W., Klaus, W., ‘Definiowanie dyskryminacji w prawie polskim 
w świetle prawa Unii Europejskiej oraz prawa międzynarodowego’ (Defining discrimination in Polish law in 
light of European Union law and international law), Problemy Współczesnego Prawa Międzynarodowego, 
Europejskiego i Porównawczego 2013, tom XI.  

21   The reluctance in Poland to directly use the English word ‘gender’ results from a false narrative of ‘gender 
ideology’ and intentional misinterpretation of the notion of ‘gender’ in order to limit the rights of women 

12 

 
 
 
 
 
 
 
 
 
 
3.1.3  General overview of national acts 

The definitions of such general concepts as direct discrimination, indirect discrimination, 
positive  action,  harassment,  sexual  harassment  and  instruction  to  discriminate  are 
provided for in the Labour Code and the Anti-Discrimination Law.  

3.1.4  Political and societal debate and pending legislative proposals 

The public debate on the need to amend the anti-discrimination legislation and bring it in 
full compliance with anti-discriminatory provisions of the Constitution and some general 
concepts of EU Directives, was ongoing between 2012 and the first half of 2015. However, 
it  was  interrupted  by  the  change  of  government  in  November  2015.  Although  minor 
changes were made to  this legislation in the following years, e.g. the  above-mentioned 
2019 amendments of the formulation of the prohibition of discrimination provided for in 
the LC, the  express pace at  which they were  adopted by the  Parliament22  excluded not 
only the possibility to conduct a joint experts’ meeting or social discussion on this issue, 
but  even  the  possibility  of  including  in  the  works  of  the  parliamentary  committees  the 
often  quite  reasonable  proposals  of  amendments  made  by  the  legislative  office  of  the 
parliament or deputies from the opposition parties. Instead, those proposals were rejected 
without  any  consideration,  by  the  ruling  party,  having  the  majority  in  the  Parliament, 
whose  deputies  seem  to  follow  the  party's  instructions  as  to  how  to  vote  without 
questioning it. 

3.2  Sex/gender/transgender 

3.2.1  Definition of ‘gender’ and ‘sex’ 

In the Polish legislation there is no legal definition either of gender or of sex.  

3.2.2  Protection of transgender, intersex and non-binary persons  

The  discrimination  of  transgender,  intersex  and  non-binary  persons,  as  well  as  unequal 
treatment due to gender reassignment, is not explicitly prohibited in the Polish legislation. 

However,  in  the  author’s  opinion,  the  linguistic  interpretation  of  the  anti-discrimination 
provisions  makes  it  possible  to  recognise  that  the  existing  prohibition  of  ‘sex 
discrimination’ may be applied in different contexts; also, to protect transgender, intersex 
or non-binary persons.  

Additionally,  in  the  years  2012–2013,  the  Parliament  discussed  a  legislative  proposal 
amending  the  Anti-Discrimination  Law,  which,  in  addition  to  sex  and  sexual  orientation 
(which  already  exist  as  grounds  of  discrimination,  intended  to  explicitly  introduce  sex 
identity and sex expression as grounds of discrimination.23 The Draft Law, however, was 
not passed by the previous Parliament and, according to the rule on the discontinuity of 
parliamentary  works,  after  the  next  parliamentary  elections  (which  took  place  in  2015) 
this draft was not processed by the current Parliament. No other draft amending the Anti-
Discrimination Law has been identified as having been presented to the current Parliament.  

and LGBTI persons. See, for instance, the campaign ‘Zatrzymajgender’ (Stopgender.pl), 
https://instytut.pl.tl/www-.-stopgender-.-pl.htm. 

22   This law was adopted by the lower chamber of the Parliament (Sejm) within one month: the third reading 

was scheduled after midnight, as has been reflected in the description of the legislative proceedings related 
to Parliamentary Print No. 1653. See: https://www.sejm.gov.pl/Sejm8.nsf/PrzebiegProc.xsp?nr=1653. 

23   Legislative proposal of 10 October 2012, Ref.: Sejm (VII Term) Print 1051 

http://orka.sejm.gov.pl/Druki7ka.nsf/0/866BA4538180DB32C1257AFC003C8D94/%24File/1051.pdf, 
http://www.sejm.gov.pl/Sejm7.nsf/PrzebiegProc.xsp?nr=1051. 

  Hereafter: Draft Law amending the Anti-Discrimination Law.  

13 

 
 
 
 
 
 
 
 
 
 
 
 
 
3.2.3  Specific requirements 

In order to benefit from legal sex non-discrimination protection in Poland, transgender and 
similar groups of persons do not have to fulfil any specific requirements.  

3.3  Direct sex discrimination 

3.3.1  Explicit prohibition  

Direct  discrimination  is  explicitly  prohibited  in  Poland  in  Article  3(3)  of  the  Anti-
Discrimination Law, as well as in Article 113 and Article 183a(2) of the Labour Code.  

The definition in the Anti-Discrimination Law is as follows:  

‘By direct discrimination is to be understood a situation in which, a natural person 
because of sex (....) is treated less favourably than another person in a comparable 
situation is, was or would be treated’. 

The LC states that:  

‘Direct discrimination occurs when an employee, as a result of one or more of  the 
reasons  defined  in  Paragraph  1,  is  or  could  be  treated  less  favourably,  in  a 
comparable situation, than other employees’. 

3.3.2  Prohibition of pregnancy and maternity discrimination 

Pregnancy  and  maternity  discrimination  are  forbidden  in  the  Polish  legislation,  yet  they 
are  not  explicitly  indicated  as  forms  of  direct  sex  discrimination.  Neither  the  Anti-
Discrimination Law nor any provision of the LC states expressis verbis that discrimination 
includes any less favourable treatment of a woman because of her pregnancy or childbirth-
related leave. However, Article 12 of the Anti-Discrimination Law, as modified by the Law 
of 24 July 2015 (JoL 2015 Item 1268), stipulates that, in case of a breach of the equal 
treatment rule with regard to pregnancy or childbirth-related leave, such person has the 
right  to  damages,  according  to  Article  13  (which  refers  to  discrimination-related 
damages).24  Also  in  some  case  law  related  to  the  LC,  the  violations  of  the  rights  of 
employees deriving from protection of pregnancy or parenthood, are considered to be sex-
based discrimination.25  

24   The Draft Law amending the Anti-Discrimination Law proposed adding the following provision: ‘The violation 
of the equal treatment rule … in relation to pregnancy or maternity constitutes direct sex discrimination’. 
This definition is broad enough to also cover the discrimination connected with breastfeeding in the context 
of equal access to services, which is not reflected in the regulation currently in force (see more in the next 
footnote). 

25   The Supreme Court (SC) in the judgment of 8 January 2008, II PK 116/07, said that: ‘the exercise of 

powers conferred by law in connection with the birth and upbringing of the child cannot be regarded as an 
objective reason for determining a lower remuneration compared to other employees’. The plaintiff (a 
mother of five children) claimed damages for discrimination based on sex, age and family status. In her 
opinion, signs of discrimination included, inter alia, significant differences in remuneration between her and 
the other employees. The employer argued that unfavourable remuneration of the claimant was, inter alia, 
the result of her frequent use of maternity and parental leave. The courts of first and second instance found 
that, by differentiating the situation of the claimant in terms of pay, comparing to other employees, the 
defendant applied legally acceptable criteria. These judgments were set aside by the SC, recognising a 
cassation claim and ruling that it was discrimination on the grounds of sex and family status. 
The ruling of the SC of 8 July 2008, IPK 294/07, may serve as another example – its major point is as 
follows: ‘Acceptance of the position that absence from work of a female employee caused by an endangered 
pregnancy, followed by miscarriage and health complications, may constitute justified grounds for 
terminating her employment contract and justify the refusal to accept her back to work, due to its 
purposelessness, would violate the rules regarding protection of motherhood and may even be considered 
as discrimination with regard to sex’. In a first-instance ruling of 3 August 2016, the District Court for 
Wrocław Śródmieście found that immediate termination of employment of a pregnant woman, for alleged 
violation of her obligation of loyalty towards the employer, expressed in frequent use of legitimate and 
justified medical leave, constituted an incompetent attempt of termination of the employment relation, 

14 

 
 
 
 
 
 
 
  
 
 
 
 
 
 
3.3.3  Specific difficulties 

The definition of direct discrimination in the Anti-Discrimination Law corresponds with the 
one contained in the Recast Directive.26 However, the definition of this concept in the LC, 
which in this respect states: ’where the employee has been, is or could have been treated 
less favourably in a comparable situation than other workers’27 is not entirely correct. It 
refers  to  a  comparable  situation  not  in  the  context  of  another  employee  (as  does  the 
Recast  Directive),  but  instead  refers  to  a  ‘comparable  situation’  to  the  employee  being 
discriminated against. Therefore, one might wonder how the situation of the employee can 
be compared with others, before alleged discrimination against him/her happens.  

In the authors’ view, this inconsistency may be removed by a proper interpretation (that 
is, being in compliance with the Recast Directive) in courts’ case law.  

The lack of a clear statement in the Polish legislation that the disadvantageous treatment 
of  pregnant  women  or  parents  due  to  taking  maternity,  parental  or  childcare  leave 
constitutes direct sex discrimination, constitutes a shortcoming in the implementation of 
EU law. However, due to the long-lasting good tradition of good maternity and parental 
protection in Poland, this deficiency does not have a significant negative impact on judicial 
practice. 

3.4  Indirect sex discrimination 

3.4.1  Explicit prohibition 

Indirect  sex  discrimination  is  explicitly  prohibited  in  both  the  Anti-Discrimination  Law 
(Article 3(3)) and the Labour Code (Article 113 and in Article 183a(2)).  

Article 3(2) of the Anti-Discrimination Law states:  

‘Indirect  discrimination  is  to  be  understood  as  a  situation  where  a  natural  person 
with regard to sex …due to an apparently neutral provision, criterion or practice was 
or would be put at particular disadvantage or in a particularly unfavourable situation, 
unless that provision, criterion or practice is objectively justified by a legitimate aim 
and the means of achieving that aim are appropriate and necessary’. 

Article 183a(4) LC reads as follows: 

‘Indirect discrimination shall be taken to occur where an apparently neutral provision, 
criterion or practice puts or would put all or a large number of employees belonging 
to  a  particular  group  in  a  particularly  disadvantageous  situation  or  create  an 
unfavourable disparity on one or more grounds referred to in Paragraph 1 as regards 
the  establishment  and  termination  of  their  employment  relationship,  terms  and 
conditions of employment, promotion and access to training for the development of 
their  professional  qualifications,  unless  that  provision,  criterion  or  practice  is 
objectively  justified  by  a  legitimate  aim  and  the  means  of  achieving  that  aim  are 
appropriate and necessary.’  

violating Article 2 and Article 33 of the EU Charter of Fundamental Rights, as well as Article 2 Paragraph 1 
and Article 8 Paragraph 1 of the 76/207 Council Directive. The court also referred to rulings of the Court of 
Justice in cases C-460/06 and C-177/88. 

26   Article 3(1) of the Anti-Discrimination Law speaks about the physical person concerned who ‘is treated less 
favourably than another person in a comparable situation is, has been or would be treated’. The Recast 
Directive speaks about: one person who is treated less favourably on grounds of sex than another is, has 
been or would be treated in a comparable situation. 

27   Article 183a(3) of the Labour Code.  

15 

 
 
 
 
 
 
 
 
 
 
 
 
 
Article 113 LC, which sets out one of the general principles of labour law, confines itself to 
indicating  that  the  prohibition  of  discrimination  also  applies  to  indirect  discrimination, 
without defining it. 

3.4.2  Statistical evidence 

The  Polish civil procedure,  even if not mentioning directly the admissibility of statistical 
evidence,  still  does  not  exclude  such  possibility.  In  one  of  the  cases  (mainly  related  to 
discrimination  on  the  grounds  of  employment  status,  although  claimed  by  a  woman)  it 
seems that the Supreme Court encouraged using statistics in order to prove the possibility 
of  indirect  discrimination.28  Namely,  the  Supreme  Court  tackled  the  issue  of  wage 
discrimination of a woman employed for a trial period and decided to revert the case for 
reconsideration  to  the  court  of  second  instance,  ordering  it  to  examine  if  the  employer 
took advantage  of his contractual right to  reduce the basic  salary  only (or mostly) with 
regard to trial-period employees. If this was true, it could constitute wage discrimination 
against this group of employees.29 However, this is the only case law identified to openly 
use statistical evidence in order to establish a presumption of indirect discrimination. 

3.4.3  Application of the objective justification test 

There  is  no  evidence  that  the  objective  justification  test  has  been  used  to  prove  sex 
discrimination in court proceedings in Poland. However, in other discrimination cases (for 
example,  related  to  different  pay  for  equal  work),  the  courts  generally  accepted  the 
worker’s increased  mobility and availability as  objective justifications,  without reflecting 
on their possible negative impact on female employees (see for examples Section 4.2.5).  

Courts  attach  increasing  importance  to  the  criterion  of  objective  justification  for 
differentiating  employees’  situations.  In  shaping  the  jurisprudence,  they  often  refer  to 
European  jurisprudence,  which  stipulates  that  if  an  employer  wants  to  dismiss  an 
judgment  of 
employee  this  dismissal  has  to  be  objectively 
22 February 2007  (I  PK  242/06)  the  Supreme  Court  indicated  that  in  the  event  of  a 
differentiated remuneration of employees performing the same work, the employer should 
prove  that  they  were  guided  by  objective  reasons.  If  employers  refer  to  various 
professional qualifications and seniority, this means that they must make evident that they 
have been of significance in carrying out the tasks entrusted to employees. The court also 
argued that in situations where the remuneration system is non-transparent, the employer 
must clearly demonstrate that it is non-discriminatory.30 

justified.  In  the 

There is quite extensive case law on discrimination in the context of dismissals. According 
to national case law, the justification for differentiation with reference to purely budgetary 
reasons,  such  as  ‘the  employer’s  poor  economic  situation’  or  ‘policy  to  reduce 
unemployment’, does not satisfy the requirements of legality.  

28   Supreme Court ruling of 18 April 2012, II PK 197/11. 
29   In this case, the issue of remuneration was regulated by a collective agreement, which entitled the 

employer to reduce the basic salary (by one or two categories of classification). In the opinion of the court, 
the provision of the collective agreement as such did not have a discriminatory character in respect to 
wages, especially given the fact that no premises were identified (hence none could be assessed as 
discriminatory) which would guide the employer by applying the provision. The court found, however, that 
discriminatory practice (direct or indirect) in respect to wages might be observed in the phase of application 
of the collective agreement by the employer. 

30   In this judgment the Court referred also to the judgment of the ECJ of 17 October 1989, 109/88, in the 
case of Handels- og Kontorfunktionarernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on 
behalf of Danfoss, and to the ECJ judgment of 3 October 2006, C-17/05, in the case of BF Cadman v Health 
& Safety Executive. 

16 

 
 
 
 
 
 
 
 
 
 
 
3.4.4  Specific difficulties 

No specific difficulties as to the application of the concept of indirect discrimination have 
been  identified.  On  the  contrary,  a  good  practice  example  is  worth  mentioning.  In  the 
resolution of 19 November 2008 (I PZP 4/08), the Supreme Court, taking into account EU 
regulations, stated that the:  

‘Termination of  an  employment  contract for  a  fixed period by  employers solely on 
the  grounds  of  acquiring  the  right  to  a  retirement  pension  […]  constitutes 
discrimination on the grounds of sex (Article 11³ of the Labour Code)’.  

This is due to the different retirement ages of women (55 years) and men (60 years). If 
an employer were allowed to terminate an employment contract solely on the grounds of 
the employee acquiring the right to a retirement pension, this would disadvantage women, 
as their retirement age is lower than men. In practice, women would be in a particularly 
unfavourable  situation  in  relation  to  men,  if  they  could  be  dismissed  five  years  earlier, 
because it would negatively affect their further professional career, wages or retirement 
benefits. This would thus constitute indirect discrimination on the grounds of sex. 

To support this view, the reasoning further refers to the then applicable Community law 
and  the  case  law  of  the  Court  of  Justice,  stressing  that  ‘national  courts  are  required  to 
interpret national law in a Directive-oriented manner when national law provides for legal 
concepts or formulations derived from a Directive’.31 

3.5  Multiple discrimination and intersectional discrimination32 

3.5.1  Definition and explicit prohibition 

Multiple  discrimination  understood  as  discrimination  based  on  two  or  more  grounds 
simultaneously, or intersectional discrimination, which produces a new and different type 
of discrimination, are not explicitly addressed in Polish legislation, although the LC (e.g. in 
Article 183a(3))  recognises  the  possibility  of  discrimination  based  on  ‘one  or  multiple 
reasons’. In consequence, the LC does not e.g. require the amount of damages to be raised 
in such a case. The unimplemented draft law of 2012 amending the  Anti-Discrimination 
Law  had  proposed  to  add  a  provision  explaining  that  ‘multiple  discrimination’  is  to  be 
understood as situations of unequal treatment, based on more than one of the grounds 
mentioned in Article 1. Additionally, in the same draft it was proposed to amend Article 13, 
which was to receive the following wording:  

‘By adjudicating on the amount of damages or compensation (…) the court takes into 
consideration their effectiveness, proportionality and severity. In particular, the court 
adjudicates higher damages or compensation in the case of multiple discrimination’.  

However,  the  draft  does  not  pay  any  attention  to  intersectional  cases.  As  already 
mentioned, unfortunately, this draft has been abandoned. 

31   This view has been confirmed by SC ‘resolution 21 January 2009 (II PZP 13/08). It is worth mentioning that 

this view has already been expressed by the Constitutional Tribunal, which pointed out, among other 
things, that the right of a woman to take early retirement at a reduced retirement age is her special 
privilege, while the imposition of an obligation to terminate the employment relationship earlier than a man 
should be considered as a restriction of professional opportunities for women (judgment of the 
Constitutional Tribunal of 24 September 1991 /Kw 5/91/). 

32   For more information, see Fredman, S. (2016), Intersectional discrimination in EU gender equality and non-
discrimination law, European network of legal experts in gender equality and non-discrimination, available 
at https://www.equalitylaw.eu/downloads/3850-intersectional-discrimination-in-eu-gender-equality-and-
non-discrimination-law-pdf-731-kb. 

17 

 
 
 
 
 
 
 
 
 
 
 
 
 
3.5.2  Case law and judicial recognition  

There is the legal possibility to simultaneously invoke several grounds of discrimination in 
the same claim (since the law explicitly refers to ‘one or more grounds’ (among others in 
Article  183b(1)  LC).  In  practice,  this  happens  more  and  more  often  and  is  treated  as  a 
procedural tactic, rather than real manifestation of multiple discrimination, especially since 
the  prevailing  opinion  in  Supreme  Court  rulings  is  that  the  claimant  should  obligatorily 
indicate the alleged ground (or grounds) in the complaint.  

In  the  author’s  view,  the  fact  that  the  Polish  legislator  collectively  regulates  gender 
discrimination with discrimination for other reasons obliterates the fact that, on the one 
hand, women, due to their long history of  sex discrimination, are also more susceptible 
than men to discrimination for other reasons. On the other hand, discrimination on other 
grounds only deepens discrimination on grounds of sex or gender, making it harsher.  

3.6  Positive action 

3.6.1  Definition and explicit prohibition 

In the Polish legal system, there is no dedicated legal term corresponding with the notion 
of ‘positive action’. Nevertheless, such actions are explicitly allowed.  

Both the Labour Code and the Anti-Discrimination Law use a descriptive construct of:  

‘measures  undertaken  over  a  certain  period  of  time  aimed  at  realising  equal 
opportunities for … employees who experience different treatment on one or more 
grounds..., by reducing existing inequalities to the advantage of those employees...’ 
(Article 183b(3) LC),  

or  

‘measures  aimed  at  compensating  the  inconveniences  connected  with  unequal 
treatment  at  the  source  of  which  lies  one  or  more  grounds  for  discrimination  ...’ 
(Article 11 Anti-Discrimination Law). 

In  each  of  those  cases,  such  measures  are  admissible  as  permissible  exceptions  to  the 
principle of equal treatment (under certain conditions). In the professional literature and 
in  policy  documents  for  ‘positive  action’,  the  following  terms  are  used:  equalisation  of 
opportunities,  compensatory  preference,  preferential  treatment,  affirmative  action,  and 
positive discrimination. These terms are used interchangeably and the literature does not 
pay much attention to possible differences between them.  

The Polish definitions of ‘positive action’ correspond to the ‘spirit’ of  Article 157(4) TFEU 
and follow CJEU case law, although they differ in detail. Some differences are related to 
the  fact  that  Polish  legislation  is  not  limited  to  cases  of  sex  discrimination:  both  the 
definition in Article 11 of the Anti-Discrimination Law and the definition in Article 183b(3) 
of the Labour Code, as opposed to Article 157(4) TFEU, do not limit the possibility of using 
positive action to ensure full equality in practice between men and women, but rather refer 
to differences in situation because of other grounds as well. They also do not mention the 
under-represented group of persons as the target for applying such measures. The Polish 
provision  of  the  Labour  Code  also  underlines  the  temporary  nature  of  such  measures, 
which is not required according to Article 157(4) TFUE.  

None  of  the  Polish  legislation  explicitly  mentions  that  adopted  measures  consist  in 
providing for ‘specific advantages’. The Labour Code refers to ‘measures aimed at realising 
equal opportunities’ and the Anti-Discrimination Law to ‘measures aimed at compensating 
for the inconveniences connected with unequal treatment’. 

18 

 
 
 
 
 
 
 
 
 
 
 
 
 
3.6.2  Conceptual  distinctions  between  ‘equal  opportunities’  and  ‘positive  action’  in 

national law 

It  seems  that  at  least  the  Labour  Code  does  not  consider  ‘equal  opportunities’  to  be  a 
separate concept from positive action. 

3.6.3  Specific difficulties  

No specific difficulties in applying positive action in employment per se could be observed, 
since this issue was not subject to deeper reflection in the doctrine of labour law, nor in 
the jurisprudence of common courts. Only the Constitutional Tribunal paid some attention 
to this issue.33  

3.6.4  Measures to improve the gender balance on company boards 

There  are  no  legislative  measures  which  aim  to  improve  gender  balance  on  company 
boards,  only  soft-law  recommendations.  These  recommendations  are  of  general  nature 
and  it  should  be  emphasised  that,  after  successive  modifications  of  the  Corporate 
Governance Code (Kodeks Spółek Handlowych), they have eventually become weaker than 
initially  intended.  It  is  worth  tracing  this  evolution.  In  June  2010,  the  Warsaw  Stock 
Exchange (GPW) issued a document titled: ‘Good Practices of Stock Exchange Companies’, 
which included a provision that public companies and their stakeholders are recommended 
to contribute to a balanced participation of women and men in their  bodies. In 2016, a 
new document was issued which, instead of a requirement for a balanced representation, 
merely  recommends  the  preservation  of  diversity  with  regard  to  sex  (as  well  as  age, 
education and professional expertise) (Recommendation II.R.2).34 They do not, however, 
have  the  competence  to  set  forth  a  target  value  for  representation  of  the  under-
represented sex or a diversity policy; they can merely publish recommendations.  

However, there is also a positive development to note. With respect to brokerage houses 
and  so-called  significant  banks,35  the  Minister  of  Finances  issued  two  ordinances,36 
providing  for  the  requirement  to  establish  in  such  institutions  special  nomination 
committees (komitety do spraw nominacji). According to the Law on trading in financial 
instruments  (Ustawa  o  obrocie  instrumentami  finansowymi),  analogue  nomination 
committees,  generally  equipped  with  the  same  competences,  are  to  be  established  in 
Polish  companies  running  stock  exchanges.37  Among  the  tasks  of  these  bodies  is  the 
determination of ‘a target value for representation of the under-represented sex on the 
board of directors’ and development of ‘a diversity policy for the composition of the board 
of directors ... to achieve this target’. However, there is no sanction for non-fulfilment of 
the  diversity  policies.  Additionally  (with  the  exception  of  companies  running  stock 

33   See, for example, ruling of 12 July 2012 (P 24/10), in which the Constitutional Tribunal considered the 

admissibility of preferential treatment, inter alia, by arguing that a derogation from the principle of equal 
treatment is permitted in such a case if the differentiation satisfies the requirements of relevance, 
proportionality and links with other constitutional norms, principles and values, including in particular the 
principle of social justice. 

34   The Good Practices form an annex to the Resolution of the GPW Supervisory Board No. 26/1413/2015 of 13 
October 2015. This document, which substituted the previous one, has been in force since 1 January 2016, 
Published: https://www.gpw.pl/pub/GPW/STATIC/files/PDF/RG/Uch_RG_DB2016.pdf.  

35   Significant banks (banki istotne) according to Article 4(35) of the Act of 28 August 1997 Banks Law 

(uniform text JoL 2018, Item 2187) means an important bank in terms of size, internal organisation and 
type, scope and complexity of its operations, which meets at least one of the following conditions: - the 
bank's shares were admitted to trading on the regulated market within the meaning of the provisions of the 
Act of 29 July 2005 on Trading in Financial Instruments (JoL 2017, Item 1768, as amended); - the bank's 
share in the own funds of the banking sector is not less than 2 %, or has been recognised as such by the 
Polish Financial Supervision Authority. 

36   The Ordinance of the Minister of Finance of 7 May 2018 on the detailed scope of tasks of the committee for 
nominations in brokerage houses (JoL of 2018, Item 878) and the Ordinance of the Minister of Finance of 7 
May 2018 on the detailed scope of tasks of the committee for nominations in significant banks (JoL of 2018, 
Item 883). 

37   Article 25a pt. 11.3 of the Law of 29 July 2005 on financial instruments (JoL of 2005 No. 183 Item 1538). 

19 

 
 
 
 
 
 
 
 
exchanges), the committees perform periodical examinations (at least once every year) 
of the performance of the board of directors in this respect and recommend changes to 
the supervisory boards.  

All the above committees also have the competence to review the policy of the boards of 
directors  with  regard  to  the  selection  and  appointment  of  bank  managers  and  present 
recommendations.  On  31  May  2019,  due  to  the  confirmed  continuation  of  under-
representation  of  women  on  the  management  boards  and  supervisory  boards  of  listed 
companies  and  state-owned  companies,  in  order  to  achieve  a  real  improvement,  the 
Commissioner for Human Rights, acting in the capacity of equality body, drew the Prime 
Minister's attention38 to the need to introduce regulations into the Polish legal order, with 
mandatory quotas (30 %) of representation of both genders in decision-making bodies of 
listed companies, in particular, companies owned by the Treasury.39 

3.6.5  Positive action measures to improve the gender balance in other areas  

There are positive action measures to improve the gender balance introduced with respect 
to lists of political candidates for public elections. The Electoral Code of 5 January 2011 
introduced (in Article 211(3) and Article 425(3)) the requirement to include at least 35 % 
of  women  and  men  on  electoral  lists  to  the  Sejm,  the  European  Parliament  and  local 
elections for Community Councils, with a sanction of refusal to register the list in cases of 
non-compliance.40 Since 2011, these quotas no longer apply to the elections of the Senate, 
considering  single-member  constituencies  were  introduced.  Since  2014,  the  quotas  no 
longer  apply  to  the  community  council  elections  either,  for  the  same  reasons.  Further 
efforts to broaden the scope of single-member constituencies, undertaken in 2014, have 
failed.  Also  unsuccessful  were  attempts  undertaken  in  2015  to  introduce  an  alternate 
requirement,  placing  women  and  men  on  the  electoral  lists  (the  so-called  zipper 
mechanism),  despite  promises  made  by  the  then  leaders  of  the  ruling  coalition  (Civic 
Platform  and  Polish  People’s  Party).  Such  mechanisms  would  increase  the  chances  for 
women to be elected, as candidates placed in the first places of the electoral lists usually 
receive the highest number of votes. In March 2019, the Commissioner for Human Rights 
appealed for a change in the electoral law in this respect, underlining that after the 2015 
Sejm election, women only constitute 27 % of all deputies.41 However, the electoral law 
has not been changed. 

38   The Prime Minister's competence in this respect results from the fact that the Act of 16 December 2016 on 
the Principles of Management of State Property (JoL 2018 Item 1182) transferred to the Prime Minister, at 
the beginning of 2017, the competence to coordinate the powers in companies previously vested in the 
State Treasury, including the determination of good practices, in particular, in the area of corporate 
governance or corporate social responsibility.  

39   Official register number of the Commissioner’s address to the Prime Minister: XI.801.14.2016.KWŻ, 

https://www.rpo.gov.pl/sites/default/files/Wyst%C4%85pienie%20do%20Prezesa%20Rady%20Ministr%C3
%B3w%20ws.%20niedostatecznego%20udzia%C5%82u%20kobiet%20we%20w%C5%82adzach%20sp%
C3%B3%C5%82ek.pdf.  

40   In the 2014 local council elections, the refusal to register electoral lists occurred in 255 cases, mainly due 
to the fact that the required number of supporters’ signatures had not been attained. In the report of the 
National Electoral Commission on these elections, there is no information on the number of cases where 
such refusal was due to the non-fulfilment of the 35 % quota. See: Report of the National Electoral 
Commission on local elections 2014: 
http://pkw.gov.pl/g2/oryginal/2015_03/ec7e7f5b93dff615524e7e5940408b5d.pdf. 

  During the parliamentary election in 2015, the same reason for most of the 66 refusals was identified. See: 

Report of this Commission on the 2015 parliamentary election: 
https://pkw.gov.pl/uploaded_files/1456930188_Informacja%20PKW-KBW-2015.doc.  

41   https://www.wnp.pl/parlamentarny/spoleczenstwo/rzecznik-praw-obywatelskich-chce-zmian-w-kodeksie-

wyborczym-suwak-mialby-zwiekszyc-szanse-kobiet,37895.html.  

20 

 
 
 
 
 
 
 
 
 
 
3.7  Harassment and sexual harassment 

3.7.1  Definition and explicit prohibition of harassment 

Both  the  Anti-Discrimination  Law42  as  well  the  Labour  Code43  provide  for  separate,  but 
very  similar  definitions  of  harassment,  identical  with  the  definition  provided  for  in 
Article 2(1) of the Directive 2006/54/EC, however, without indication of any grounds.  

These provisions dealing with harassment do not apply to harassment on the grounds of 
sex, which is in both of these legal acts improperly regarded as sexual harassment and 
defined in the same provision entitled ‘sexual harassment’ with the following wording:  

‘…any form of unwanted conduct ... related to the sex of a person with the purpose 
or  effect  of  violating  her/his  dignity,  in  particular  when  creating  an  intimidating, 
hostile,  degrading,  humiliating  or  offensive  environment  (atmosphere);  Such 
behaviour may consist of physical, verbal or non-verbal conduct’. 

Treating harassment related to sex as sexual harassment in the Polish law constitutes an 
incorrect implementation of Article 2(1) of the 2006/54/EC Directive.  

3.7.2  Scope of the prohibition of harassment 

Concerning the personal scope of the prohibition of harassment based on sex, provided 
for in the Labour Code, it is limited only to employees in the understanding of this law.  

The  Anti-Discrimination  Law  extends  the  possibility  of  applying  the  provisions  on  the 
prohibition of harassment to all other members of the working population. It may therefore 
also  be  applied  to  persons  who  performed  work  on  the  basis  of  contracts  other  than 
employment’s  contracts  (e.g.  contract  of  mandate,  contract  for  specific  work)  and  self-
employed  in  individual  economic  enterprises  outside  or  within  agriculture,  who  perform 
so-called free professions (legal, medical, artistic), as well as to all persons who access or 
supply goods and services.  

As to the material scope, this prohibition applies in the sphere of employment with regard 
to  access  to  professional  training,  in  relation  to  the  conditions  of  undertaking  and 
conducting  professional  activity.  The  harassment  provisions  also  apply  with  regard  to 
access and conditions of use of labour-market instruments and services, as well as social 
insurances  (social  security),  housing  services,  in  access  to  goods  and  services  and  in 
acquiring rights (e.g. deriving from transactions carried out outside the area of private and 
family life), as long as they are offered publicly. 

The personal and material scope of application of the prohibition of harassment in access 
to goods and services strictly correspond with Directive 2004/113/EC. 

3.7.3  Definition and explicit prohibition of sexual harassment 

Sexual  harassment  is  also  defined  both  in  the  Labour  Code  (Article  183a(6))  and  in  the 
Anti-Discrimination Law (in an almost identical manner).  

The wording of Article 183a(6) LC is as follows:  

42   Article 3(3) of the Anti-Discrimination Law stipulates that harassment is taken to include any form of 

unwanted conduct, the purpose or effect of which is violation of the dignity of a person, in particular when 
creating an intimidating, hostile, degrading, humiliating or offensive environment (atmosphere).  
43   Article 183a(5) Item 2 LC states that occurrences of discrimination are any unwanted conduct with the 

purpose or effect of violating the dignity of an employee and of creating an intimidating, hostile, degrading, 
humiliating or offensive environment (atmosphere) (harassment). 

21 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
‘Discrimination on the grounds of sex is also taken to include any form of unwanted 
conduct of a sexual nature, ... with the purpose or effect of violating her/his dignity, 
in  particular  when  creating  an  intimidating,  hostile,  degrading,  humiliating  or 
offensive environment (atmosphere); this behaviour may consist of physical, verbal 
or non-verbal conduct (sexual harassment)’.  

According  to  Article  3(4)  of  the  Anti-Discrimination  Law,  sexual  harassment  is  taken  to 
include any form  of unwanted conduct of a  sexual nature towards a  person ... with the 
purpose  or  effect  of  violating  the  dignity  of  a  person,  in  particular  when  creating  an 
intimidating, hostile, degrading, humiliating or offensive environment (atmosphere), this 
behaviour may consist of physical, verbal or non-verbal conduct.  

3.7.4  Scope of the prohibition of sexual harassment 

Since  sexual  harassment  and  harassment  related  to  sex  are  regulated  in  the  same 
provision, the scope of their prohibition is also respectively the same. It means that the 
prohibition  provided  for  in  the  Labour  Code  is  limited  to  employees  and  the  prohibition 
provided  for  in  the  Anti-Discrimination  Law  extends  the  possibility  of  applying  sexual 
harassment  provisions  to  persons  who  perform  work  on  the  basis  of  other  legal 
relationships  than  an  employment  contract,  as  well  as  to  persons  self-employed  in 
individual economic enterprises or agriculture (see 3.6.6). The prohibition also applies to 
the consumption and the supply of goods and services.  

3.7.5  Understanding of (sexual) harassment as discrimination 

The  Labour  Code  explicitly  recognises  harassment  related  to  sex,  as  well  as  sexual 
harassment as discriminatory behaviour on the grounds of sex.  On the other hand, the 
Anti-Discrimination  Law  considers  sexual  harassment  as  an  expression  of  unequal 
treatment  (Article  3(6)  in  conjunction  with  Article  3(5)).44  However,  the  difference  in 
formulation  seems  to  have  no  practical  meaning,  as  the  Labour  Code  in  Article  183a(7) 
states  that  it  may  not  cause  negative  consequences  for  the  employee  to  submit  to 
harassment or sexual harassment, as well as taking action to oppose harassment or sexual 
harassment.  Similarly,  in  light  of  Article  3(5)  of  the  Anti-Discrimination  Law,  any  less 
favourable  treatment  of  an  individual,  stemming  from  the  rejection  of  harassment  or 
sexual  harassment,  subordinate  harassment  or  sexual  harassment,  is  considered  as 
unequal treatment.  

3.7.6  Specific difficulties  

In the case law regarding sexual harassment, many different issues were raised indicating 
the difficulties which courts face while deciding such cases.  Those doubts concerned the 
following  problems:  How  should  the  employee  demonstrate  that  sexual  conduct  was 
undesirable? How should the burden of proof be allocated in such cases? What is the extent 
and basis of the employer's responsibility for sexual harassment amongst its employees? 

In the judgment of 7 November 2018 (II PK 229/17), the Supreme Court, while dismissing 
the claimant's appeal, at the same time responded to some of the above issues, however, 
not in a fully satisfactory way. In her cassation appeal, the claimant accused the Regional 
Court of, inter alia, breaching substantive law in relation to  Article 183a Section 6 of the 
Labour  Code,  by  its  erroneous  interpretation  that  sexual  proposals,  which  do  not 
materialise in sexual activities due to the lack of consent of the addressee of the proposals, 
may be regarded as an element of approved flirtation, whereas the adoption of such a rule 
is contrary to the legal definition of sexual harassment, eventually leading to legitimisation 
of  all  sexual  harassment  not  involving  physical  abuse.  In  addition,  she  claimed 

44   Less favourable treatment of an individual stemming from rejection of the sexual harassment, or 

subordinate sexual harassment is considered as unequal treatment. 

22 

 
 
 
 
 
 
 
 
 
 
infringement of Article 183a(6) in conjunction with Article 183b(1) of the Labour Code and 
Article 14 of the Anti-Discrimination Act, by reason of their incorrect application, in that 
the  burden  of  proof  was  wrongly  placed  on  the  applicant  in  respect  of  proving  her 
opposition to sexual harassment. In her opinion, the court should have shifted the burden 
of proof to the defendant in this respect. 

Moreover, she claimed infringement of Article 94(2b) LC, which puts the obligation on the 
employer to act against discrimination in employment, in particular in respect of sex, while 
in her opinion, the employer did not react properly on her claims and also the court failed 
to examine whether the defendant had complied with the aforementioned legal standard 
by taking effective measures to counteract discrimination. 

In its response to the first allegation, the Supreme Court confirmed that the analysis of 
Article 183a Section 6 LC leads to concluding that physical contact with the victim of sexual 
harassment  does  not  have  to  occur.  At  the  same  time,  however,  it  recalled  that  the 
criterion  which  is  essential  for  assessing  whether  sexual  conduct  constitutes  sexual 
harassment is the fact that such conduct is undesirable to the employee. In the opinion of 
the Supreme Court, the content of SMS messages sent from her superior’s mobile to the 
claimant was of a sexual nature and indicated that she obviously did not meet his sexual 
expectations,  but  these  SMSs  alone  were  not  considered  sufficient  to  accept  the  thesis 
that  the  applicant  did  not  approve  of  the  proposals  resulting  from  these  messages  and 
opposed them. Therefore, the Supreme Court shared the opinion of the courts of I and II 
Instances, that there was no sexual harassment in this case.45  

The  Supreme  Court  held  that  the  complainant  correctly  concluded  that  Article  183b 
Section 1  LC  (imposing  an  obligation  on  the  employer  to  prove  that,  in  breaching  the 
principle of equal treatment in employment, he was guided by objective reasons) should 
not be invoked in a case of sexual harassment because the obvious unlawfulness of sexual 
harassment cannot be justified by any objective reasons. Although the Supreme Court’s 
remark  on  the  inapplicability  of  Article  183b  Section  1  LC  in  relation  to  alleged  sexual 
harassment was correct, the Court nevertheless made no attempt to investigate whether 
there was a causal link between alleged sexual harassment and the applicant's subsequent 
transfers by her employer to other departments of the company and the final termination 
of her employment contract.46 

In  the  Supreme  Court’s  (SC)  opinion,  the  cassation  allegation  of  infringement  of 
Article 94(2b) LC by reason of its non-application is also not justified, either. Pursuant to 
this  provision,  the  employer  is  obliged  to  counteract  discrimination  in  employment,  in 
particular on the grounds of sex. The SC confirmed that the employer is also responsible 
for discriminatory practices of its employees (including harassment) if it failed to prevent 
them. However, this regulation does not provide for any specific sanctions for violation of 
the  obligation  specified  therein.  Article  183  of  the  Labour  Code  will  not  be  directly 
applicable, as it concerns compensation for breach of the principle of equal treatment by 
the  employer.  The  above  provision  constitutes,  however,  an  indicator  in  the  process  of 
establishing the responsibility of the employer with respect to general provisions, such as 
Article 471 of the Civil Code, in conjunction with Article 300 LC, in the event of failure to 

45   The Supreme Court rightly noted that '...in certain circumstances, expressing such an objection directly 
may be problematic, especially when the perpetrator is the employee's superior or another person 
representing the employer. The average employee usually is not interested in conflicting with the employer 
and may therefore fear for possible consequences of expressing an objection to the attitude of the superior 
(or other person acting on behalf of the employer). The determination of whether the offender's behaviour 
was unwanted by the employee should therefore be based on all the circumstances. The form of objection 
may be, for example, the avoidance of contact between the complainant and the offender. In the 
mentioned case, however, witnesses appointed by the employer did not confirm that this was the case.  
46   The Supreme Court agreed with the claimant that the provision of the LC in question must be supplemented 

by the regulation of Article 14(3) of the Anti-Discrimination Law, according to which, in the event of 
probable breach of the principle of equal treatment, the entity accused of breaching that principle is obliged 
to prove that it has not been committed. This solution seems attractive, but to assess its usefulness it is 
necessary to consider equally procedural aspects, which the SC abandon.  

23 

 
 
 
 
 
 
perform  its  duty  to  prevent  discrimination.47  In  the  opinion  of  the  SC,  the  prerequisite, 
however, for such liability is always a prior determination of the existence of discriminatory 
behaviour.  It  is  difficult  to  agree  with  this  assertion,  as  it  means  that  the  employer  is 
exempt  from  the  obligation  to  prevent  sexual  harassment,  even  if  such  allegation  was 
made, but not eventually proven. 

3.8  Instruction to discriminate 

3.8.1  Explicit prohibition 

In both the Anti-Discrimination Law and the Labour Code there are explicit prohibitions on 
instructions  to  discriminate.  According  to  the  Anti-Discrimination  Law  (Article  3(4)), 
unequal treatment is also understood as the encouraging or ordering of any discrimination. 
The  LC  stipulates  that  the  prohibition  of  discrimination  also  forbids  the  instruction  to 
discriminate (Article 183a(5) point 1 LC). 

3.8.2  Specific difficulties 

The matter of instruction to discriminate is very rarely discussed by courts.  

Only one court judgment was identified, issued by the District Court in Gdansk,48 indicating 
that proving such discrimination can be very difficult in practice, unless there is written 
evidence. In this case the claimant alleged that the waiter at the restaurant, in prohibiting 
a  woman  from  breastfeeding  her  child  at  the  table,  declared  that  he  was  acting  upon 
instruction  of  the  owner  (who  was  absent  at  the  time  of  the  incident).  However,  when 
during  the  proceedings,  the  owner,  and  eventually  also  the  waiter,  denied  that  such 
instruction  ever  took  place,  the  court  decided  that  there  was  not  sufficient  evidence  to 
confirm this fact. The issue of instruction to discriminate is also very seldomly examined 
in legal literature.49 

3.9  Other forms of discrimination 

The  Polish legislation does not provide for any other forms  of discrimination. Polish law 
does not cover algorithmic discrimination. Poland has not adopted any legal instruments 
to combat algorithmic discrimination, neither in relation to  gender  equality nor to other 
grounds. 

3.10 Evaluation of implementation 

The implementation of the general concepts of European gender equality law is basically 
correct, with several exceptions.  

The main difference between the current Polish and EU regulations is related to the fact 
that,  unlike  EU  law,  in  Polish  law,  sex  discrimination  is  regulated  together  with 
discrimination  on  other  grounds.  As  a  result,  existing  legislation  is  unclear  and  vague, 
making it highly difficult to understand and interpret even for lawyers. It occurs especially 

47   Iwulski, J., Kodeks Pracy. Komentarz (Labour Code. Commentary), Warszawa 2011. 
48   District Court of Gdańsk, ruling of 12 December 2016, case No. IC 206/15. 
49   Only one commentary on the LC includes an example of a Temporary Work Agency that encouraged 

employers to give a salary to temporary workers that was lower than that received by other employees. 
Gersdorf, M., Rączka, K., Skoczyński, J., Kodeks Pracy. Komentarz (Labour Code. Commentary), ed. 6, 
Lexis Nexis, Warszawa 2004, p. 67. In more recent commentaries on the LC, this issue is either completely 
omitted (see: commentary on Article183a(5)(1) LC: Świątkowski, A.M., Kodeks Pracy. Komentarz (Labour 
Code. Commentary), 4th edition, C.H. Beck, Warszawa 2012, p. 81-90 and Muszalski, W. (in) Kodeks 
Pracy. Komentarz (Labour Code. Commentary) ed. Muszalski, W. 8th edition, C.H. Beck, Warsaw 2011, p. 
50), or limited to the general interpretation of this provision, such as that the refusal of the employee to 
comply with the instruction has no significance for the responsibility of the instructor (Compare: Korus, P. 
(in) Kodeks Pracy. Komentarz (Labour Code. Commentary), ed. Sobczyk, A., 2nd edition, C.H. Beck, 
Warszawa 2015, p. 69.  

24 

 
 
 
 
 
 
 
 
 
 
 
 
 
under  the  Anti-Discrimination  Law,  which  provides  for  different  scopes  of  protection 
against discrimination on different grounds.  

Moreover, the definition of direct discrimination in the LC, is not entirely correct with regard 
to  the  hypothetical  activities  of  employers.  Namely,  the  Labour  Code  speaks  of  a 
comparable situation not in the context of another employee (as does the Recast Directive 
and  the  Anti-Discrimination  Law,  which  speak  about  one  person  who  is  treated  less 
favourably  on  grounds  of  sex  than  another  is,  has  been  or  would  be  treated  in  a 
comparable  situation),  but  refers  to  a  ‘comparable  situation’  to  the  employee  being 
discriminated against.50 In the author’s view, this inconsistency may be removed by proper 
interpretation  applied  by  courts  (that  is,  being  in  compliance  with  the  Recast  Directive, 
which speaks about: ‘one person who is treated less favourably on grounds of sex than 
another is, has been or would be treated in a comparable situation’). 

As  far  as  the  definition  of  indirect  discrimination  is  concerned,  despite  the  different 
wording,  the  definitions  in  many  respects  correspond  to  the  EU  definition  with  two 
objections.51  Namely,  neither  the  Labour  Code  nor  the  Anti-Discrimination  Act  make 
reference  to  a  comparison  with  other  persons  not  having  a  so-called  protected 
characteristic, as is the case in EU law (e.g. Article 2(1)b. of the Recast Directive refers to 
a  'particular  disadvantage  compared  with  persons  of  the  other  sex').  In  addition,  the 
definition in the Labour Code mentions among the  criteria of indirect  discrimination the 
'a  particular 
requirement  that  a  given  activity,  apparently  neutral, 
disadvantageous situation of all or a large number of employees belonging to a particular 
group'. Such a large group effect is not provided for in the Recast Directive 2006/54, which 
while speaking about other persons refers only to a plural number without requiring ‘all or 
a large number’ of employees. This requirement, if rigorously applied by the courts, may 
be difficult to demonstrate in practice.52  

leads  to 

Another example of incorrect implementation of EU law constitutes the above-mentioned 
definition of sexual harassment which according to Polish regulations, also encompasses 
harassment related to sex. This type of harassment is treated as a separate central concept 
in EU law. For this reason, it should also be regulated in Polish law in the same place as 
harassment for other reasons.53 

The  fact  that  neither  the  Anti-Discrimination  Law  nor  any  provision  of  the  LC  states 
expressis  verbis  that  discrimination  includes  any  less  favourable  treatment  of  a  woman 
because  of  her  pregnancy  or  childbirth-related  leave,  can  also  be  considered  an 

50   Article 183a(3) of the Labour Code in this respect states: ‘…where the employee has been, is or could have 
been treated’. One might wonder how the situation of the employee can be compared with others, before 
alleged discrimination against him/her happens. 

51   The same opinion was expressed by, among others, Burek, W., Klaus, W., ‘Definiowanie dyskryminacji w 
prawie polskim w świetle prawa Unii Europejskiej oraz prawa międzynarodowego’ (Defining discrimination 
in Polish law in light of European Union law and international law). Problemy Współczesnego Prawa 
Międzynarodowego, Europejskiego i Porównawczego 2013, tom XI. The opposite opinion: Maliszewska-
Nienartowicz, J., ‘Kryteria dyskryminacji pośredniej – standardy europejskie a prawo i praktyka polskich 
sądów’ (Criteria for indirect discrimination – European standards and the law and practice of Polish courts). 
Polskie Towarzystwo Prawa Antydyskryminacyjnego. No issue date. 
http://ptpa.org.pl/site/assets/files/publikacje/opinie/Opinia_kryteria_dyskryminacji_posredniej.pdf. 
52   Maliszewska-Nienartowicz, J., ‘Kryteria dyskryminacji pośredniej – standardy europejskie a prawo i 
praktyka polskich sądów’ (‘Criteria for indirect discrimination – European standards and the law and 
practice of Polish courts’) Polskie Towarzystwo Prawa Antydyskryminacyjnego. No issue dated. 
http://ptpa.org.pl/site/assets/files/publikacje/opinie/Opinia_kryteria_dyskryminacji_posredniej.pdf. 

53   The removal of the notion of ‘harassment’ related to sex from the definition of sexual harassment, as well 

as the over-generalisation of the latter definition (e.g. by removing the word ‘unwanted’ and all assessment 
criteria related to the atmosphere, such as ‘intimidating, hostile, degrading, humiliating or offensive’), has 
been proposed by G. Jędrejek, Dochodzenie roszczeń związanych z mobbingiem, dyskryminacją i 
molestowaniem. Zagadnienia prawne (Enforcing claims related to bullying, discrimination and harassment. 
Legal issues). Warszawa 2017 r., p. 387. The proposal aimed at the generalisation of the definition is not in 
line with EU definitions of sexual harassment.  

25 

 
 
 
 
 
 
implementation  deficit.54  In  some  LC-based  case  law,  discrimination  with  regard  to 
pregnancy is considered to be ‘sex-based’,55 while discrimination with regard to childbirth-
related leave is seen as ‘parenthood based’.56 Nevertheless, this does not directly result 
from the wording of the provisions included in Chapter IIa of the LC, referring to unequal 
treatment and discrimination cases, hence this fact is not well known amongst employees 
and employers, nor, as can be seen in other case law, even amongst some of the judges.57 
Article  12  of  the  Anti-Discrimination  Law,  as  modified  by  the  Law  of  24  July  of  2015,58 
does in fact stipulate that, ‘in the case of a breach of the equal treatment rule with regard 
to pregnancy or childbirth-related leave, such person has the right to damages, according 
to Article 13 (which refers to discrimination-related damages). Nevertheless, this provision 
does not explicitly provide that the discrimination includes any less favourable treatment 
of  a  woman  related  to  pregnancy  or  maternity  leave,  which  could  have  significant 
informative and educational impact, amongst employers and employees and the general 
public,  thus  better  preventing  discrimination  in  this  area  and  facilitating  the  pursuit  of 
claims before courts.  

It  is  also  desirable  to  introduce  into  Polish  legislation  an  explicit  regulation  relating  to 
discrimination  on  the  grounds  of  gender  identity,  discrimination  by  association  and 
discrimination  by  assumption,  as  well  as  multiple  and  intersectional  discrimination, 
following the understanding of European case law and legal scholarship.  

3.11 Remaining issues 

It  is  worth  noting  that  Article  10  of  the  Anti-Discrimination  Law  expands  the  scope  of 
application of the anti-discrimination provisions to legal, as opposed to natural, persons, 
by stating that unequal treatment of legal persons …59 shall be prohibited, if the breach of 
the principle of  equal treatment is violated  with respect to the origin, race,  ethnicity  or 
nationality of their members. However, this provision does not apply where the principle 
of equal treatment has been infringed on the grounds of the sex of the members of such 
organisations.  

At this point the author limits herself to indicating that the lack of clear distinction by the 
Polish legislator between the notion of infringement of the principle of equal treatment and 
the notion of discrimination (which sometimes were treated by the legislator as synonyms) 
has  caused  many  problems  in  courts’  efforts  to  establish  their  mutual  relations.  In  the 
current jurisprudence of the Supreme Court, the prevailing opinion is that discrimination 
is a qualified (more severe) form of violation of the principle of equal treatment due to the 

54   Provisions of this chapter of the LC only state that application of measures, which differentiate the legal 
situation of an employee due to protection of parenthood, are irrespective of the rule of equal treatment 
(Article 183b(2) pt. 3 LC). 

55   The ruling of the SC of 8 July 2008, IPK 294/07, may serve as an example. 
56   For example, in the ruling of 25 February 2016 (II PK 357/14 the Supreme Court noted: ‘if taking up 

childcare leave by the employee, upon his return to work becomes the reason for unequal treatment in 
employment, it constitutes parenthood-related discrimination’. 

57   In many court rulings, however, labour courts, when accepting claims of employees (e.g. regarding 

violation by the employer of the statutory prohibition of worsening working conditions while transferring a 
pregnant woman to easier work, by not including for the women who worked in the conditions harmful to 
health the period of pregnancy or sickness and maternity leave into the shorter (then regular) length of 
working time required for acquisition of retirement pension by the employee performing such kind of work) 
did not consider such infringements of the LC’s provisions by the employer as sex discrimination. As a 
result, the claimants did not receive the special damages for discrimination provided for in Article 183d of 
the LC. n. See, for example: Court of Appeals in Warsaw, ruling of 5 February 2016, case No. III AUa 
124/15, Court of Appeals in Lublin, ruling of 12 August 2015, case No. III AUa 417/15 and of 13 April 2016, 
case No. III AUa 898/15, Supreme Court, ruling of 7 October 2014, case No. I UK 51/14.  

58   JoL 2015 Item 1268. 
59   As well as other organisational units which are not legal persons, to which the law grants legal capacity.  

26 

 
 
 
 
 
 
application of a prohibited criterion of differentiation.60 However, such gradation does not 
derive directly from the legislation.61 

60   See, for example, the ruling of the SC of 14 December 2017, I PK 342/16.  
61   In practical terms this means that the claimant must indicate and substantiate in the statement of the 
petition the ground (or grounds) for the unequal treatment. If the claimant fails to do so and confines 
himself to indicating that he was treated unequally, he will not be entitled to special compensation provided 
for in Article 183d LC. The problem is that Article 183d LC does not speak about ‘discrimination’ but about 
‘violation (infringement) of the principle of equal treatment’.  

27 

 
 
 
 
4 

Equal  pay  and  equal  treatment  at  work  (Article  157  of  the  Treaty  on  the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54) 

4.1  General (legal) context 

4.1.1  Surveys on the gender pay gap and the difficulties of realising equal pay 

In  Poland,  for  many  years  the  Central  Statistical  Office  (GUS)  has  conducted  regular 
research on the remuneration of women and men.62 According to GUS data, the average 
salary of women is lower than that of men. In October 2018, this difference amounted to 
PLN 900 (EUR 196), which means that the average salary of a woman was 19.9 % lower 
than the average salary of a man. For hourly wages, the gap was 13.6 %.63  

The latest available report on the structure of wages and salaries dates back to 2016. The 
data refers to full- and part-time employees who worked the whole month of October 2014 
in national economic entities with more than nine employees. The Gender Pay Gap (GPG) 
is calculated on the basis of average hourly rates of gross total remuneration for time paid 
in accordance with the Eurostat methodology. In 2014, men achieved an average gross 
hourly wage that was 6.2 % higher than the average hourly wage in total, and women one 
that was lower by 6.8 %, so that the average hourly gross wage of men was 13.9 % higher 
than the average hourly gross wage of women. It is worth noting that data from the Central 
Statistical  Office  shows  that  Poland’s  gender  pay  gap  in  the  private  sector  is  over  four 
times higher than in the public sector.64 This is important because in Poland, according to 
GUS data for 2018, the private sector employs about 75 % of all employees.65 

On  the  basis  of  GUS  data,  a  survey  was  carried  out  in  2016  by  a  think  tank  called  the 
Institute  for  Structural  Research,  followed  by  the  publication  of  a  report  entitled  ‘The 
Future  of  the  European  Union’.66  The  authors  of  the  part  of  this  report  dealing  with 
differences  between  women’s  and  men’s  salaries  stressed  that  the  gender  pay  gap  in 
Poland is generally relatively high in comparison with other European countries: although 
among  public  enterprises  it  is  one  of  the  lowest  in  Europe;  private  enterprises,  whose 
share of employment is dominating, are located above the EU average. Although women 
receive bonuses and awards more often than men, they are much lower in terms of amount 
(in  entities  employing  at  least  nine  persons,  the  gender  pay  gap  in  terms  of  flexible 
components of remuneration reaches as much as 30 %).  

In 2014, women's and  men's salaries were  also  examined by the Supreme Chamber of 
Control (NIK). This monitoring of gender pay covered the entire civil servants corps (about 

62   The last partial study of the GUS ‘Kobiety i mężczyźni na rynku pracy’ ('Women and men on the labour 
market') was carried out in 2016. See also: Badania Aktywności Ekonomicznej Ludności (Bael). (The 
Economic Activity Studies of the Population (Bael). This labour force Survey covers people aged 15 and 
over. Its results and methodology are presented quarterly in the publication entitled ‘Aktywność 
Ekonomiczna Ludności Polski’ (The Economic Activity of the Polish Population), 
https://biznes.interia.pl/news/kobiety-i-mezczyzni-na-rynku-
pracy,1854159?utm_source=paste&utm_medium=paste&utm_campaign=firefox. 

63   GUS, Struktura wynagrodzeń według zawodów w październiku 2018 roku (Wage structure by occupation in 
October 2018), 26.02.2020, https://stat.gov.pl/obszary-tematyczne/rynek-pracy/pracujacy-zatrudnieni-
wynagrodzenia-koszty-pracy/struktura-wynagrodzen-wedlug-zawodow-w-pazdzierniku-2018-
roku,4,9.html# 

64   ‘Różnice w wynagrodzeniach kobiet i mężczyzn w Polsce’ (Differences in wages of women and men in 
Poland). GUS Report from 2016, https://stat.gov.pl/obszary-tematyczne/rynek-pracy/pracujacy-
zatrudnieni-wynagrodzenia-koszty-pracy/roznice-w-wynagrodzeniach-kobiet-i-mezczyzn-w-polsce-w-2016-
r-,12,2.html. 

65   GUS, Statistical information, Pracujący w gospodarce narodowej w 2018 r. (Employment in the national 

economy in 2018), Warsaw 2019, p. 11, 
https://stat.gov.pl/download/gfx/portalinformacyjny/pl/defaultaktualnosci/5474/7/16/1/pracujacy_w_gosp
odarce_narodowej_w_2018_roku.pdf. 

66   Report prepared by Magda, I., Tyrowicz J., Van der Velde, L., from Instytut Badań Strukturalnych pt. 

‘Nierówności placowe kobiet i mężczyzn. Pomiar, trendy, wyjaśnienia’ (Pay inequalities between women and 
men. Measurement, trends, explanations), 
http://ibs.org.pl/app/uploads/2016/05/IBS_Nierownosc_Placowa_raport.pdf. 

28 

 
 
 
 
 
 
 
 
2 300  offices).67 This study shows that in Poland, depending  on the adopted method  of 
data selection and calculations, the wage gap ranges from 7 % to 18.5 % (which translates 
into an average lower remuneration of women by about PLN 700 (EUR 152).  

According to Eurostat data (2014), Poland has one of the lowest wage gaps in the European 
Union  –  the  difference  in  wages  is  7.7  %  to  the  disadvantage  of  women,  while  the  EU 
average is 16.7 % (the difference in the average gross hourly rate in the whole economy). 
According  to  the  latest  GUS  forecast,  the  wage  gap  indicator  according  to  the  Eurostat 
methodology, for 2016 amounted to 7.2 %, i.e. 0.5 percentage points lower than in 2014. 
Those  studies  also  confirmed  the  rule  that  the  higher  the  position,  the  greater  the 
differences in salaries between men and women; the difference in managerial positions in 
Poland  is  27.7  %,  i.e.  4.3  percentage  points  more  than  the  EU  average.  In  the  most 
female-dominated sectors, with the dominating role of the public sector (i.e. in education 
and health), the scale of wage inequalities between women and men is twice as high as 
the difference in average wages. It can be assumed that the high supply of highly qualified 
women is conducive to a larger scale of inequality (however, the researchers emphasised 
that  it  cannot  be  shown  that  this  dependence  has  a  cause  and  effect  character).  Wage 
inequality is also visible in the flexible components of wages.68 

These  findings  were  partially  confirmed  in  the  Supreme  Audit  Office  (Najwyższa  Izba 
Kontroli  –  NIK)  report  published  in  2014.  The  report  shows  that  men  earn  more  than 
women  in  most  of  the  public  administration  units,  municipal  companies  and  the  State 
Treasury surveyed by  NIK. The audit showed that the statistical difference between the 
salaries  of  men  and  women  in  the  public  sector  in  the  case  of  basic  pay  is  10.82  %  in 
favour of men. The difference, to the disadvantage of women, is as much as 80 % among 
109 types of positions in ministries, central and provincial offices, local government units, 
state treasury companies and municipal companies. The NIK report also shows that among 
people with higher education, pay differences are particularly significant in favour of men. 
In contrast to  other studies, it was found that in  inspected  workplaces, men  receive  on 
average more awards than women. It is confirmed, however, that they can also count on 
higher bonuses from employers, and the rewards received are also higher in value.  
According to information provided by the Civil Service Department of  Chancellery of the 
Prime Minister in 2013 to the President of NIK, the total remuneration of women and men 
in most positions in the civil service was higher in favour of men (in total by about 21 %, 
in higher positions by about 7 %). This data allows only to present the wage gap between 
the average monthly salaries of women and men in the job groups. However, it does not 
allow for the analysis of individual salaries of women and men in the same positions and 
for drawing conclusions on possible wage discrimination of women in the civil service.69 

67   Report ‘Zapewnienie prawa do jednakowego wynagrodzenia kobiet i mężczyzn w sektorze publicznym’ 

(Ensuring the right to equal pay for women and men in the public sector). Informacja o wynikach kontroli 
(Information on the results of the inspection), Report signed by Stawska, J., accepted by Uczkiewicz, J. – 
Vice President of NIK, on 10 December 2013. Document’s evidential number: 167/2013/P13151/LKR, 
https://www.nik.gov.pl/aktualnosci/nik-o-wynagrodzeniu-kobiet-i-mezczyzn.html. Monitoring takes place, 
inter alia, through annual reports of directors-general of offices, examination of selected groups of offices 
and positions in the civil service corps, and a payroll report. 

68   Report ‘Zapewnienie prawa do jednakowego wynagrodzenia kobiet i mężczyzn w sektorze publicznym’ 

(Ensuring the right to equal pay for women and men in the public sector) (Ensuring the right to equal pay 
for women and men in the public sector). Informacja o wynikach kontroli (Information on the results of the 
inspection), Report signed by Stawska J., accepted by Uczkiewicz, J. – Vice President of NIK, on 10 
December 2013. Document’s evidential number: 167/2013/P13151/LKR, 
https://www.nik.gov.pl/aktualnosci/nik-o-wynagrodzeniu-kobiet-i-mezczyzn.html.  

69   See: Address by the Commissioner for Human Rights to the President of the Supreme Audit Office, of 16 

April 2014. (No.: 1.816.10.2014.KWŻ). 
https://www.rpo.gov.pl/sites/default/files/Do_MPiPS_ws_niwelowania_roznic_w_wynagrodzeniach_kobiet_i
_mezczyzn.pdf, see also: Response of the Secretary of State in the Chancellery of the Prime Minister to the 
Government Plenipotentiary for Equal Treatment – to the deputy interpellation No. 24243 on pay 
discrimination against women employed in the public administration sector, 
http://sejm.gov.pl/sejm7.nsf/InterpelacjaTresc.xsp?key=4C0CE619.  

29 

 
 
 
 
 
In  many  studies  aiming  to  determine  the  size  of  the  gender  pay  gap,  the  causes  of  its 
existence  have  been  identified  as  well.  It  is  most  often  stressed  that  the  pay  gap  is  a 
complex phenomenon, because it results from the co-existence of many factors influencing 
the  situation  of  women  and  men  in  the  labour  market.  There  are  objective  differences, 
such as differences in education, professional experience or kind of exercised profession. 
There are also factors on which employees have less influence – such as sex segregation 
in the labour market  or length of  service resulting from unfair division of family duties. 
Women's lower pay is also influenced by their lower self-esteem – Polish women do not 
highly  assess  their  chances  of  finding  a  job  and  have  lower  financial  expectations  than 
men. Both in the group of young unemployed  (that is, unemployed graduates up to 30 
years of age) and among the remaining unemployed, women's financial expectations are 
lower by PLN 303 (EUR 70) and by PLN 366 (EUR 85), respectively.  

In the study conducted by NIK, no differences in the level of remuneration were found to 
have  been  caused  by  employers  violating  the  equal  treatment  rule.  Rather,  wage 
differentiation  in  groups  of  comparable  positions  resulted  –  according  to  the  opinion  of 
researchers – primarily from the role played for the whole institution by the organisational 
unit in which the employee was employed, and thus from the scope of duties assigned to 
him/her. Women worked mainly in organisational units, as well as servicing or controlling 
units, while men, mainly due to their field of study, were more often employed in specialist 
units  related  to  the  performance  of  the  main  tasks  of  the  institution.  The  differences 
between men's and women's earnings were, to a large extent, also caused by a greater 
share of men in the group of employees in managerial positions.  

Other studies also stress that an obstacle in combating the wage gap is the fact that few 
entities monitor average wages for women and men on an ongoing basis. The reference 
point is usually the average for the whole entity or a specific department. However, the 
earnings  of  women  and  men  in  equal  positions  or  in  jobs  of  equal  value  are  not 
benchmarked. A chance to change this situation is offered by the introduction of a tool in 
2017 by the Ministry of Family, Labour and Social Policy, in the form of a special computer 
application, which compares the wages of employees taking into account such features as: 
gender, age, education, position, working time and seniority.70 Since 2017, the app has 
been available free of charge to all employers. In the period 2017–2019, there were more 
than 10 300 hits on the app page.71 

4.1.2  Surveys on the difficulties of realising equal treatment at work 

Equal treatment in the workplace has been reflected in research, in different areas and at 
different levels of detail. The analysis covers the existing inequalities in the labour market 
understood as manifestations of a horizontal segregation (research in the ICT and financial 
sectors)  and  a  vertical  segregation  (research  on  managers  in  enterprises  and  the 
authorities  of  listed  companies).  The  research  presented  the  collected  numerical  data, 
analysed  the  existing  barriers  to  the  implementation  of  the  principle  of  gender  equality 
and  the  possibilities  of  overcoming  them.  Studies  were  conducted  by  different, 
independent entities, and the mosaic  of  results obtained in them is difficult to translate 
into a comprehensive, coherent picture of the problem. 

Difficulties  in  implementing  the  principle  of  equal  treatment  based  on  gender  in  the 
financial sector were analysed in the  research  conducted by the Foundation Institute of 
Innovative Economy.72 Surveys show that although women make up nearly 61 % of the 

70   https://www.gov.pl/web/rodzina/aplikacja-do-mierzenia-nierownosci-plac. 
71   Reply of the Minister of Labour and Social Policy to the parliamentary Interrogatory document No. 14680 on 

the development of a programme to eliminate the wage gap between women and men, available at: 
https://www.podatki.biz/artykuly/luka-placowa-miedzy-kobietami-i-mezczyznami-jest-gorzej-gdy-jest-
lepiej_10_46221.htm ; http://sejm.gov.pl/Sejm9.nsf/InterpelacjaTresc.xsp?key=BVXL7F&view=6  

72   ‘Kobiety w finansach. Obecność kobiet w polskim sektorze finansowym’, Raport Fundacji Instytut 

Innowacyjna Gospodarka, 2015 (Women in finance. Presence of women in the Polish financial sector) 

30 

 
 
 
 
 
 
 
 
total workforce, their share in lower management positions is less than 44 % (30 % in the 
case of banks), while on supervisory and management boards it is only 16 % and 12 % 
respectively.  

The presence of women in the Polish ICT sector was also analysed.73 The study shows that 
the highest management positions in the Polish ICT sector companies are occupied by only 
48 women (slightly more than 10 %), out of 452 positions. Only 9 women (5 %), hold the 
position of President of the Management Board in this sector. Barriers to women's careers 
in  ICT  can  be  divided  into  general  and  specific  ones.  General  barriers  are  the  same  as 
other obstacles to women's participation in the labour market and result from the need to 
reconcile  the  absorbing  professional  role  with  the  role  of  wife  and  mother,  and  from 
stereotypes affecting the perception of women in society, among which the most important 
is the belief that women differ from men (are less available, courageous and effective, and 
have different motivations), so they cannot be good managers. A specific reason for the 
low participation of women in the teams of companies dealing with ICT is the relatively 
low interest in technical faculties among secondary school graduates and students of other 
faculties. In Poland, the percentage of female graduates of IT studies was 13 % in 2014. 
Research  also  shows  that  a  quarter  of  female  students  of  technical  studies  have 
experienced  systematic  dissuasion  by  their  environment  from  choosing  such  fields  of 
study; 17 % have heard that they will not be able to cope with learning; and 7 % that 
they will fail already at the initial stage of their professional career. Specific barriers also 
include  the  organisational  culture  of  the  company:  exclusion  of  women  from  informal 
networks  of  co-workers  and  lack  of  support  from  higher-level  staff,  these  positions 
occupied mainly by men. 

In  the  context  of  vertical  segregation,  difficulties  in  applying  the  principle  of  equal 
treatment were analysed in a study conducted in 2017 by the Business Leaders Foundation 
in  cooperation  with  Kantar  Millward  Brown.74  The  survey  shows  that  half  of  Polish 
enterprises  are  managed  exclusively  by  men  and  at  every  level  of  management.  The 
majority of respondents (regardless of sex) admit that they prefer a man as a superior. In 
addition, no man from  the top management  declares that they want a female superior. 
The  causes  of  vertical  gender  segregation  in  the  labour  market  include  historically 
determined  structural  factors  (e.g.  the  dominant  vertical  and  hierarchical  structure  of 
company management, which was the characteristic feature of the socialist economy, and 
the dominant heavy industry in the Polish economy), factors related to the organisational 
culture of enterprises (e.g. a rare model of a ‘self-learning’ enterprise which means that 
the  enterprise  (usually  through  the  use  of  AI)  learns  from  their  own  data,  actions  and 
results  on  how  to  improve  its  activities)  and  factors  of  a  social  and  educational  nature 
(including  the  strength  of  stereotypes’  impact,  women’s  reluctance  to  take  on 
responsibility and certain activities as a result of the syndrome of learned helplessness).75 
The  Report  also  indicates  the  tools  available  for  introducing  changes  and  strengthening 
equal treatment:  change  of company  culture,  e.g. by introducing a position  responsible 
for  implementing,  supporting  and  developing  diversity  (diversity  officer),  training, 

Report of the Foundation Institute of Innovative Economy: 
https://www.fundacjaliderekbiznesu.pl/pliki/Raport_kobiety_w_finansach.pdf. 

73   ‘Kobiety w technologiach. Obecność kobiet w polskim sektorze teleinformatycznym’, Raport Fundacji 
Instytut Innowacyjna Gospodarka, 2016; (Women in technology. Presence of Women in the Polish 
Information and Communication Technology Sector), Report of the Foundation Institute of Innovative 
Economy, 2016; the report is no longer available online.  

74   ‘Gdzie jest szklany sufit. Kobiety w średniej kadrze zarządzającej’ (badanie przeprowadzone w 2017 r. 

przez Fundację Liderki Biznesu we współpracy z Kantar Millward Brown (Where's the glass ceiling? Women 
in middle management (survey conducted in 2017 by the Business Leader Foundation in cooperation with 
Kantar Millward Brown)), 
https://www.fundacjaliderekbiznesu.pl/pliki/Gdzie_jest_szklany_sufit_Kobiety_w_sredniej_kadrze_zarzadza
jacej.pdf. 

75   It is the psychological term usually used for the situation of battered women, which in employment may be 

understood as describing the situation when the female employees who have repeatedly faced 
uncontrollable wage discrimination, loose the motivation for change and as a result, even if an opportunity 
arises that allows them to alter their circumstances, they do not take action. 

31 

 
 
 
 
mentoring,  using  employee  satisfaction  surveys,  applying  gender  mainstreaming  in  all 
policies, introducing objectives related to diversity to employee appraisals. The importance 
of disclosing the diversity policy in accordance with the new provisions of the Directive of 
the European Parliament and of the Council of Europe is also stressed. From 2018, some 
large companies will have to publish a report on the non-financial aspects of their activities, 
including  information  on  how  diversity  policy  was  implemented  and  its  effects,  possibly 
explaining the reasons for not implementing this policy. 

In the area of vertical segregation, the share of women in the governing bodies of stock 
exchange  listed  companies  in  Poland  was  also  examined.76  According  to  data  from  the 
survey, in 2015, over 900 companies were listed on the Warsaw Stock Exchange, including 
over 470 on the Main Market, with 2 164 members of the Management Boards and 4 690 
members  of  the  Supervisory  Boards.  The  power  in  listed  companies  was  held  by  6 854 
people. The number of women on the boards of listed companies was 870. In 2015, the 
share of women on the boards of listed companies was approximately 12 %, the share of 
women on the supervisory boards of New Connect77 companies was 21.5 %, and for the 
Main Market it was 14.5 %. The percentage of women in the position of CEO (in relation 
to the total number of CEOs of listed companies) was 6 %, and the percentage of women 
in the position of Chairman of the Supervisory Board was about 12 %. 

The  survey  covered  equal  opportunity  measures  for  women  and  men  in  medium-sized 
enterprises employing no less than 50 and no more than 250 people.78 The collected data 
shows that companies of this size very rarely undertake equality activities going beyond 
the mandatory legal provisions. Knowledge on the subject of equality actions is very low, 
and there is also a lack of awareness and motivation for actions aimed at creating equal 
opportunities for women and men. Respondents generally claimed that undertaking equal 
opportunities activities in their enterprises is not necessary, because in these companies 
the chances are allegedly equal for all, and when evaluating the employees, no attention 
is  paid  to  sex,  only  competences  and  involvement  at  work  are  important.  Among  the 
surveyed companies, only very few companies had implemented procedures to counteract 
discrimination.  At  the  same  time,  in  the  surveyed  companies  many  discriminatory 
practices on the grounds of sex were revealed, and there was also a widespread belief that 
women in these companies have fewer opportunities to develop their professional careers. 
Issues of actions for equality and diversity were slightly better recognised in companies 
that are part of a foreign capital group. The key role in the implementation of these types 
of tasks was played by specialists from the human resources department,  in companies 
where such a position existed. Among the identified barriers hindering the implementation 
of  equality  measures  by  medium-sized  companies,  barriers  of  awareness  (lack  of 
knowledge, lack of belief in the importance of such measures), of cultural nature (belief in 
stereotypically  defined  gender  roles)  and  organisational  barriers  (e.g.  lack  of  human 
resources  departments  or  persons  strictly  delegated  to  personnel  management)  were 
indicated. 

76   ‘Kobiety we władzach spółek giełdowych w Polsce. Czas na zmiany, Raport z badań Fundacji Liderek 

Biznesu, 2016’ (Women in the authorities of listed companies in Poland. Time for change, Report on the 
survey by the Foundation for Business Leaders, 2016), available at: 
https://www.fundacjaliderekbiznesu.pl/.  

77   New Connect has the status of an organised market but is operated by the Stock exchange (GPW) outside a 

regulated market in the formula of an alternative trading system. It is an offer for small and medium-sized 
developing companies from various industries. https://www.gpw.pl/pub/files/PDF/2015-05-
25_NEWCONNECTraport2015.PDF.  

78   Druciarek, M., Przybysz, I., ‘Działania na rzecz równości szans kobiet i mężczyzn w średnich firmach. Raport 
z badań jakościowych’. (Activities for the benefit of equal opportunities for women and men in medium-
sized companies. Report on qualitative research). The report was developed as part of the project ‘Equal 
opportunities in business – practical tools for implementing the principle of equal opportunities for women 
and men in enterprises’ implemented by the Cooperation Fund, Lewiatan Confederation, Good Practice 
Factory and the Institute of Public Affairs, 2018, co-financed by the European Union within the European 
Social Fund. https://www.isp.org.pl/pl/publikacje/dzialania-na-rzecz-rownosci-szans-kobiet-i-mezczyzn-w-
srednich-firmach.  

32 

 
 
 
 
 
The Commissioner for Human Rights also examined the application of the principle of equal 
treatment in relation to transsexual persons. The results are presented in the report ‘Equal 
treatment in employment regardless of gender identity – analysis and recommendations’, 
prepared on the basis of the results of the study ‘Discrimination of transgender people in 
employment’, conducted by market and public opinion polling company IQS in the period 
from  August  to  October  2015.79  The  Commissioner  points  out  three  basic  groups  of 
problems  in  the  area  of  equal  treatment  of  transgender  people:  lack  of  knowledge  of 
respondents about transgender issues, difficulties in estimating the scale of discrimination 
against  transgender  people  and  the  lack  of  regulations  concerning  the  possibility  of 
changing an individual’s sex registration in the civil-status records. The vast majority of 
respondents  do  not  know  a  single  transgender  person,  do  not  know  about  transgender 
issues  and  associate  this  phenomenon  only  with  negativity  Transgender  people  are 
reluctant to reveal themselves and rarely decide to react when they experience adverse 
treatment, because they are afraid of a worsening of the situation and do not believe in 
the  effectiveness  of  actions.  They  often  do  not  know  where  to  report  cases  of 
discrimination, nor do they seek compensation under the provisions of the Labour Code 
and the Act on Equal Treatment. In addition, the lack of regulations in Poland concerning 
the  possibility  of  changing  an  individual’s  sex  registration  in  the  civil-status  records 
restricts the right to perform work freely chosen by transgender people. Discrimination in 
the area of employment is therefore mainly experienced by transgender people when they 
have already made some changes in appearance, but  their transition process is  not yet 
complete.80 

4.1.3  Other issues 

There are no other issues to report.  
Due to the difficult situation related to the COVID-19 pandemic in 2020, no studies on the 
wage  gap  have  been  conducted.  The  pandemic  situation  significantly  affects  the  labour 
market,  so  it  should  be  assumed  that  it  will  also  affect  the  wage  gap.  It  would  be  an 
educated guess that one of the effects of the pandemic may be a further increase in the 
wage gap.  

4.1.4  Political and societal debate and pending legislative proposals 

In the last five years, the gender pay gap issue has rarely appeared in public debate. If at 
all, it was mainly on the occasion of the European Equal Pay Day. However, as the date of 
this  Day  changes  every  year,  it  is  easy  to  overlook.  As  a  result,  the  gender  pay  gap 
problem has not regularly appeared in the public space. Generally speaking, there is an 
atmosphere  of  denial  in  Poland  that  the  obvious  gender  pay  gap  is  the  result  of  sex 
discrimination. Rather, it is explained by objective factors, such as differences in education 
between women and men, as well as in the positions held. 

79   2016 Report of the Commissioner for Human Rights (Rzecznika Praw Obywatelskich – RPO). ‘Równe 

traktowanie w zatrudnieniu bez względu na tożsamość płciową. Analizy i rekomentacje’ (Equal treatment in 
employment irrespective of gender identity – analysis and recommendations), issued in the series Zasada 
Równego Traktowania Prawo i Praktyka (Principle of Equal Treatment Law and Practice), Biuletyn Rzecznika 
Praw Obywatelskich No. 19, Warszawa, 2016. 

80   On the basis of the research, the following conclusions and recommendations were formulated. The most 

important of these are aimed at changes in existing legislation, including the introduction of sex-adjustment 
legislation with a fast, transparent and accessible procedure, taking into account the need for a temporary 
document for use in the transitioning period, introduction of the amendment of the provisions on issuing a 
certificate of employment taking into account the change of personal data of persons who have obtained a 
court decision on establishing sex in accordance with their gender identity, introduction of the amendment 
of the Labour Code and Anti-Discrimination Law which will result in a clear indication that discrimination on 
grounds of gender identity is prohibited. The raising awareness and disseminating knowledge among 
employers, on transgender employment, in particular on good practices enabling transgender people to 
function in the workplace in accordance with the perceived gender. In addition, it was recommended that 
the National Labour Inspectorate, when collecting data on the number of employees' complaints about 
unequal treatment, takes gender identity into account as an independent discrimination factor. 

33 

 
 
 
 
 
 
 
On 4 March 2020, during the conference in Warsaw ‘Europe of equal pay. Polish proposal 
for legal solutions’, the Women’s Rights Congress Association presented the first draft law 
in  Poland  aimed  at  reducing  the  wage  gap  between  men  and  women.81  The  draft  law, 
developed by experts from the Women’s Congress Association, which is based on European 
regulations, envisages the implementation of instruments aimed at reducing differences 
in average pay between women and men. The draft pays particular attention to the issue 
of periodic reporting by employers on the phenomenon of ‘wage gap’ based on indicators 
of percentage differences in gross pay between women and men in a given company or 
institution  (Article 3(1)-(4)  of  the  draft)  and  the  obligation  to  present  in  the  report 
necessary  explanations  and  conclusions  together  with  a  corrective  plan  in  this  respect 
(Article 6(1) of the draft). The draft assigns important supervisory functions to the Ministry 
of Labour, which would be the institution receiving the employers’ reports (Article 4 of the 
draft).82 There was no reaction at the level of state authorities to the draft presented.83  

The official statements of the Minister of Family, Labour and Social Policy often emphasise 
that the gender pay gap in Poland is lower than in other member states of the European 
Union.  During  the  Congress  of  the  ruling  ‘Law  and  Justice’  party,  which  took  place  in 
September 2019, it was announced that, in order to fight the gender pay gap, this party 
‘…will  initiate  legislative  solutions  and  raise  existing  standards  in  the  Labour  Code.  The 
biggest employers will carry out a pay survey every two years to prevent unjustified pay 
differences  (...)  between  women  and  men’.84  Currently,  the  Sejm  is  dealing  with  a 
parliamentary draft amendment to the Labour Code (Sejm Paper No. 46385), introducing 
‘differentiation of remuneration according to an employee’s sex’ as an additional premise 
for  the  occurrence  of  mobbing.  After  the  first  reading  on  22  July  2020,  the  draft  was 
referred to the Extraordinary Committee for Changes to the Codifications. 

The topic of wage discrimination, and the need to eliminate it, have been constantly raised 
by  the  Commissioner  for  Human  Rights  in  the  last  five  years.86  In  principle,  the 
Ombudsman welcomed the Government’s initiative, but expressed doubts as to whether 
the  proposed  amendment  adequately  tackled  the  phenomenon  of  the  ‘pay  gap’,  which 
does  not  concern  individual  cases  of  unequal  pay,  but  a  broader  phenomenon  and 
inequality in average pay between men and women.87  

In the author’s opinion, the proposed amendment will not only fail to bring the systemic 
problem  of  the  wage  gap  closer  to  resolution,  but  will  also  obscure  the  definition  of 
mobbing  and  thus  potentially  make  it  more  difficult  to  pursue.  For  a  large  number  of 
employees and employers, mobbing and discrimination are already difficult to distinguish.  

81   https://4874bf6f-aad4-4141-8232-

d11f1453c7ef.filesusr.com/ugd/742d99_44d2ae28fd874e3fb4ca1515903d0d62.pdf.  

82   https://4874bf6f-aad4-4141-8232-

d11f1453c7ef.filesusr.com/ugd/742d99_e4e403493d5e4e15b3b9f138627c2b03.pdf.  

83   In a letter dated 8 September 2020 the Minister of Family, Labour and Social Policy, referring to the RPO’s 
request to submit a position on the draft law on reducing the gender pay gap, indicated that, in accordance 
with Section 149 of the Resolution No. 190 of the Council of Ministers of 29 October 2013 – Regulations of 
the work of the Council of Ministers (Journal of Laws 2016, item 1006, as amended), the Council of 
Ministers may decide not to submit a position on a non-governmental draft law 
(https://www.rpo.gov.pl/sites/default/files/Odpowied%C5%BA%20MRPiPS%2C%208.09.2020.pdf). 

84   Cited after https://businessinsider.com.pl/finanse/program-wyborczy-pis-likwidacja-luki-placowej-roznic-w-

zarobkach-kobiet-i-mezczyzn/hd08703. 

85   https://www.sejm.gov.pl/Sejm9.nsf/druk.xsp?nr=463.  
86   It is worth mentioning that in 2015, the Commissioner recommended the introduction, into the labour law, 

of the principle of remunerations’ transparency, as well as effective implementation of the European 
Commission’s recommendations of 7 March 2014. None of these recommendations has been implemented 
so far. See: 
https://www.rpo.gov.pl/sites/default/files/Do_MRPiPS_ws_roznic_w_wynagrodzeniach_kobiet_i_mezczyzn.
pdf.  

87   Letter of 5 August 2020 from the Ombudsman to the Minister of Labour and Social Policy, 

https://www.rpo.gov.pl/sites/default/files/WG%20do%20MRPiPS%20-
%20luka%20p%C5%82acowa%20a%20mobbing%205.08.2020.pdf.  

34 

 
 
 
 
 
 
4.2  Equal pay 

4.2.1  Implementation in national law 

The  principle  of  equal  pay  for  work  of  equal  value  is  provided  for  in  the  Constitution 
(Article 33(2))  as  well  as  implemented  in  the  equality  provisions  of  the  Labour  Code 
(Article 183c(1) and 183b(1) point 2). Pursuant to Article 183c(1) of the LC ‘employees have 
the  right  to  equal  remuneration  for  equal  work  or  work  of  equal  value’.  Article 183b(1) 
point  2  of  the  LC  stipulates  that  failure  to  apply  the  principle  of  equal  treatment  in 
employment by an employer ‘includes different treatment of an employee on one or more 
grounds (…) particularly with the effect of (…) unfavourable conditions of remuneration for 
work’.  The  Anti-Discrimination  Act  does  not  directly  express  the  principle  of  equal  pay, 
however, when it states in Article 4(2) that it applies to the conditions for undertaking and 
conducting  economic  or  professional  activity,  in  particular  within  the  framework  of  an 
employment relationship or employment under a civil law contract, it means, among other 
things, the equal wage conditions.  

4.2.2  Definition in national law 

The  concept  of  pay  is  defined  in  Article  183c(2)  LC.  According  to  this  provision, 
‘Remuneration  (...)  includes  all  components  of  payment  for  work,  irrespective  of  their 
name or nature, as well as other work-related monetary or non-monetary benefits granted 
to  employees.’88  This  definition,  in  principle,  corresponds  with  the  definition  in 
Article 157(2) TFEU, with two exceptions. Firstly, it does not clearly indicate that the notion 
of pay covers the income which the worker receives directly or indirectly from the employer 
in respect of the employment. Secondly, it also does not indicate a specific understanding 
of the principle of equal pay with regard to remuneration for work carried out in a piece-
rate system89 as well as in a time- rate system scheme.90 

It should be added that pursuant to Article 78(1) LC, as a general rule, the remuneration 
for work should be determined in such a way that it corresponds in particular to the type 
of work performed and the qualifications required in the performance of the work, as well 
as  taking  into  account  the  quantity  and  quality  of  work  performed.  Conditions  of 
remuneration  for  work  and  the  granting  of  other  benefits  related  to  work,  in  light  of 
Article 771 LC, are established in collective agreements. Each employer who employs at 
least  20  persons  not  covered  by  such  an  agreement  sets  out  such  conditions  in  the 
remuneration regulations (Article 772 LC). Special provisions are in force in the budgetary 
sphere  (Article  773  LC).  If  employees  employed  in  state-owned  budget  units  are  not 
covered by a collective agreement, as a rule, the terms and conditions of remuneration 
are  set  out  in  a  regulation  of  the  competent  minister.  Such  a  regulation  in  addition  to 
substantive remuneration specifies other components of remuneration beyond it, justified 
in particular by the characteristics or conditions of work or professional qualifications of 
employees.91  

There is some case law on the definition of pay. 

88   The literature mentions in this regard various allowances and so-called bonuses, such as company car, 

company flat, access to company medical services and paid voluntary medical (or other) insurance, as well 
as premiums, and severance pay. Gersdorf, M., Rączka, K., Skoczyński, J., Kodeks pracy. Komentarz 
(Labour Code. Commentary) ed. 6, Lexis Nexis, Warszawa 2004, p. 71. Similarly: Wratny, J., Kodeks pracy. 
Komentarz (Labour Law. Commentary) C.H. Beck, Warszawa 2003, p. 42.  

89   In this scheme the amount of employee’s remuneration depends on the quantitative results of his work (the 

degree to which the standard was achieved e.g. the number of shoes produced). 

90   In the case of a time-based system, the amount of remuneration depends on the amount of time worked in 
a given settlement period. In this system, the remuneration rates are set in relation to the number of time 
units (an hour, a day, a week or a month) and work efficiency has no influence on the rate. 

91   It is also stipulated that the amount of their additional component of remuneration, the granting of which 

will be conditioned by the length of employment, cannot exceed 20 % of the basic remuneration. This may 
in particular apply to the jubilee premium and a one-off severance grant in connection with the transition to 
a retirement pension (Article 773(3) LC).  

35 

 
 
 
 
 
 
 
 
For  example,  it  follows  from  the  judgment  of  the  Supreme  Court  (SC)  of  20  November 
2012 (I PK 100/12) that the remuneration includes, among other things, the possibility to 
use a car, a flat or a telephone provided by the company. The SC ruled in this case that, 
when determining whether there is wage discrimination in a company, it should also be 
taken  into  account  whether  the  persons  concerned  benefit  from  such  bonuses.  In  a 
judgment of 22 February 2008 (I PK 208/07) the SC clarified that the reimbursement of 
travel costs to the place of work or the reimbursement of the costs of apartment rental 
provided for in a work contract are part of remuneration. In a judgment of 10 May 2006 
(III PK 18/06) the Supreme Court stipulated that the definition of remuneration includes 
additional benefits for employees who are made redundant from the enterprise for reasons 
not related to them.  

Moreover, in the judgment of 10 October 2007 (II PK 39/07) the Supreme Court92 declared 
that the regulations of internal remuneration issues concerning the right to a jubilee award 
should also respect the principle expressed in Article 183c LC. Ordinary bonuses are also a 
component  of  remuneration.  The  consequence  of  this  assumption  is  that  in  disputes 
regarding bonuses, labour courts verify the fulfilment of material and legal conditions for 
receiving such benefits.93 

In a judgment of 14 December 2017 (II PK 322/16) the Supreme Court adopted a position 
regarding the qualification of functional supplements. In the case in question, the claimant 
was  granted  a  mandatory  functional  supplement  (in  the  symbolic  amount  of  PLN 1 
(EUR 0.23). The Supreme Court found that such a practice does not necessarily mean that 
the employee was discriminated against (in this case, on the grounds of her trade unions 
activity) but confirmed that the functional supplement constitutes additional remuneration 
for the particular type  of  work performed.94 A similar reasoning could be  expected with 
regard to sex discrimination. 

4.2.3  Explicit implementation of Article 4 of Recast Directive 2006/54 

In the Polish Labour Code, there is no explicit implementation of  Article 4 of the Recast 
Directive 2006/54. However, several provisions of the Labour Code refer to prohibition of 
pay  discrimination.  Article  183b(1)  and  (2)  LC  stipulates  that  a  differentiation  by  the 
employer of the situation of an employee on one or more grounds, set out in Article 18 3a 
LC,  which  has  the  effect,  in  particular,  of  disadvantaging  the  employee  concerning 
remuneration  for  work,  shall  be  regarded,  with  certain  reservations,  as  a  breach  of  the 
principle of equal treatment in employment.  

The right of employees to equal pay for equal work, as well as for work of equal value, is 
confirmed also in Article 183c(1) LC. These provisions, however, mention neither direct nor 
indirect  discrimination.  Nor  do  they  refer  to  a  job  classification  system.95  In  addition, 
Article  8  of  the  Anti-Discrimination  Law  provides  for  a  general  prohibition  on  any 
differentiation of the conditions of employment, inter alia, with regard to sex.96  

92   This case concerned the exclusion of periods of work in a private company from the periods qualifying for 

the jubilee award, which, in the opinion of the Supreme Court, justified the allegation of unequal treatment 
in employment. 

93   Judgment of the Supreme Court of 28 March 2017, case No. II PK 19/16. 
94   This means that there is an especially close link between the amount due and the employer's needs. This 
relationship was broken when the employee, as in the case of the plaintiff, did not perform such work for 
objective reasons. In those circumstances, the conduct of the employer who sets a symbolic value for an 
allowance, cannot be regarded as an act of discrimination on the basis of trade union activity. This does not 
mean, however, that the determination of the functional allowance at the level of PLN 1 is correct. Here, 
the SC referred to a similar situation where the employer in the remuneration regulations modified the 
amount of benefit by setting a maximum amount, without referring to the minimum limit. 

95   However, such a system began to be implemented in the civil service in 2008, 

https://silo.tips/download/dr-tomasz-rostkowski-2008-r.  

96   Article 8 of the Anti-Discrimination Law stipulates that unequal treatment of natural persons with regard to 
sex ‘is prohibited (…) with respect to...conditions of undertaking and performing commercial or professional 
activity, including such performed upon employment contracts or civil-law contracts’. 

36 

 
 
 
 
 
  
 
It is worth noting the regulation contained in Article 183c(2) of the LC which defines work 
of equal value as requiring:  

‘comparable  professional  qualifications  from  workers,  evidenced  by  documents 
provided  for  in  separate  regulation  or  by  practice  and  by  their  professional 
experience, as well as comparable responsibility and effort’. 

The comparability of works of equal value is thus based on objective criteria. 

4.2.4  Related case law 

It should be noted at the outset that the case law described below did not refer to wage 
discrimination based on the grounds of sex. However, the findings as to what should be 
taken into account when determining pay for equal work and what should be understood 
as work of equal value are also relevant in cases of gender discrimination.  

The examples given below relate to situations where employees claimed to be unequally 
paid for equal work. 

In the judgment of 9 May 2014 (I PK 276/13), the Supreme Court generally stated that 
equality is not the same thing as equal treatment, as it may require differential treatment 
in order to equalise opportunities or ensure equal results, or to reward and motivate the 
best  employees  financially.  Different  treatment  of  workers  in  terms  of  employment, 
including pay, is possible. However, it must be based on a legitimate need for which such 
differentiation is allowed.  

In a ruling of 11 October 2013 (III PK 28/13), the Supreme Court clarified what permissible 
reasons  are  for  wage  differentiation,  stating  that  equal  (identical)  (Polish:  ‘jednakowa’) 
work is work of the same nature, the same with regard to the qualifications required to 
perform it, the conditions under which it is performed and the quantity and quality of the 
work.  Work  that  is  equal  (identical)  in  terms  of  the  type  (nature)  and  qualifications 
required to perform the same work  in the same positions with the same employer may 
differ  in  quantity  and  quality,  and  in  this  case  does  not  constitute  work  that  is  equal 
(identical)  within  the  meaning  of  Article  183c(1)  of  the  Labour  Code.  The  quantity  and 
quality of work performed constitute acceptable premises for wage differentiation.97 

Another  example  of  work  in  the  same  position  (equal  work)  was  dealt  with  in  the 
jurisprudence  of  courts  of  appeal.  The  Court  of  Appeal  in  Szczecin  in  its  judgment  of 
6 March 2018 (III Apa 20/17) stated that:  

'There is no rational argument in support of the thesis that an employee currently 
employed in a given position should receive the same remuneration as an employee 
previously employed in the same or the similar position, or a few years back. The 
essence of the right guaranteed in Article 183c LC is the equality of employees in the 
process  of  providing  work,  and  not  the  guarantee  of  obtaining  remuneration  at  a 
specified level of value'. 

In  the  judgment  of  7  February  2018  (II  PK  22/17),  the  Supreme  Court  responded  in 
particular  to  the  issue  of  seniority  as  the  reason  for  the  differentiation  of  basic 
remuneration  rates  for  employees  employed  in  the  same  positions.  In  this  case,  the 
Supreme  Court  held  that  length  of  service  may  constitute  a  justified  reason  for  such 

97   See: Similar argumentation in the ruling of 14 December 2017 (II PK 322/16), where the Supreme Court 

added that the quantity and quality of work performed are, in light of Article 78, Paragraph 1 of the LC, the 
basic criteria for the assessment of work for the purposes of determining the amount of remuneration. They 
constitute admissible conditions for pay differentials under Article 3(3) of the Convention No. 100 of ILO 
concerning equal pay for male and female workers for work of equal value, adopted in Geneva on 29 June 
1951 (ratification: JoL 1955 No. 38 Item 23).  

37 

 
 
 
 
 
 
 
 
 
 
 
 
differentiation when the employer does not provide for a length of service allowance, and 
when  professional  experience  translates  into  the  quality  of  the  employee's  length  of 
service. However, it is not permissible to differentiate remuneration twice on the basis of 
the same criteria: length of service, by taking it into account when determining the basic 
remuneration rate, and then by also granting the length-of-service allowance. In such a 
situation, the employee receiving lower remuneration due to the length of service is in a 
much  worse  situation  than  other  employees  performing  the  same  work  with  a  greater 
length of service, because his/her basic salary is set at a lower rate, and in addition, he/she 
does not receive, or receives a lower seniority allowance. This can certainly be a sign of 
unequal  treatment  and  can  also  be  a  sign  of  discrimination  when  there  is  a  ground  for 
discrimination.  

The length of service was also addressed in a judgment of the Supreme Court of 15 March 
2016 (II PK 17/15) in which the SC stated that a longer general length of service usually 
affects the entitlement to and the amount of the length-of-service allowance, if it is based 
on the applicable pay regulations. In such situations the length of service does not infringe 
the principle of equal treatment in employment (Article 18 Section 2 point 4 at the end of 
the Labour Code).  

In  a  judgment  of  8  December  2015  (I  PK  339/14),  the  Supreme  Court  noted  that  the 
criterion of length of service is not, in itself, a sufficient parameter for determining whether 
the  work  of  compared  employees  is  equal  or  of  equal  value,  as  provided  for  in 
Article 183c(1)  LC,  as  it  does  not  refer  to  the  objective  characteristics  of  the  work 
performed. At the same time, length of service may justify differentiation of remuneration 
components  other  than  the  length-of-service  allowance  for  employees  performing  the 
same or equal work or work of equal value only if the practice and greater professional 
experience gained during a longer period of service at a comparable workplace objectively 
justifies  a  higher  remuneration  for  employees  with  higher  qualifications  and  higher 
professional efficiency resulting from a longer period of service at the same workplace. 

Subsequent cases concerned the situation of alleged unequal pay for work of equal value.  

In a judgment of 14 March 2018 (II PK 125/17), the Supreme Court ruled that the same 
description of the position held by the claimant at work, as compared to other employees, 
namely ‘chief (main) specialist’ does not determine ipso iure that such employees provide 
work of equal value. When dismissing the claimant’s cassation appeal (for a formal reason) 
the Supreme Court indicated ‘for the record’ that in the employer’s organisational structure 
there was only one human resources position, which was occupied by the claimant. The 
comparison of her work with the work of  other persons occupying the position  of ‘main 
specialists’ in the company such as an accountant, manager or PR specialist, in terms of 
the  scope  of  described  duties,  required  professional  qualifications  and  rules  of  liability, 
which were ‘diametrically’ different from the scope of duties performed by the applicant. 
It was the reason why there was no violation of the principle of equal treatment in this 
case. This judgment raises doubts as to whether the Supreme Court in the circumstances 
of  this  case  was  entitled  to  make  such  a  categorical  statement  without  focusing  on 
detailed, separate examination of each of these positions.  

The issue of the right to remuneration was also raised in a situation where the position 
occupied by the applicant is unique in the organisational structure of a given employer. In 
its decision of 25 April 2018 (I UK 499/17) the Supreme Court held that:  

‘In the case of performance of employee duties in a position which is not repeated 
in the organisational structure of the employer, there is no reasonable possibility to 
indicate and verify objective criteria for comparability of equal work for which there 
is the right to equal remuneration’.  

38 

 
 
 
 
 
 
 
 
Admittedly, this ruling was made in the context of dismissing the cassation appeal due to 
it being manifestly ill-founded. Maybe this is the reason why the Supreme Court did not 
consider  in  this  case  the  possibility  of  comparing  the  claimant's  remuneration  with  the 
remuneration  of  employees  performing  work  of  equal  value  and  additionally,  excluded 
from the outset the possibility of comparing the remuneration of employees for equal work 
but performed in other comparable enterprises. 

4.2.5  Permissibility of pay differences 

Article  183c  LC  does  not  introduce  any  criteria  of  differentiation  of  pay.  However,  the 
possibility of using the criterion of length of service (seniority) for such differentiation is 
envisaged in Article 183b(2) Point 4 LC, but only in the context of age discrimination.  

In a judgment of 22 February 2007 (I PK 242/06), the Supreme Court explained that if 
the employer, while establishing the remuneration of the comparator, took into account 
such criteria as length of service and qualifications, it must prove that particular skills and 
professional  experience  have  special  significance  for  the  fulfilment  of  the  obligations 
conferred  to  the  employee.  The  recourse  to  the  criterion  of  length  of  service,  while 
establishing  the  rules  of  additional  remuneration,  is  not  considered  a  violation  of  the 
principle  of  equal  treatment,  under  the  condition  that  it  is  appropriate  to  attain  the 
legitimate aim and the requirement of proportionality is observed (Article 183b(2)(4) LC, 
as modified by Act of 21 November 2008 (JoL 2008, No. 223, item 1460). 

The  Supreme  Court  in  its  decision  of  7  April  2011  (I  PK  232/10)  underlined  that  the 
differentiation of working conditions including pay, may also be justified by the objective 
needs of the employer, such as increased worker’s mobility and/or availability, or may be 
determined by the current situation on the employment market (e.g. a deficit of workers 
with a particular  specialisation).  The Supreme Court in this judgment, while in principle 
accepting  ‘the  worker’s  increased  mobility  and/or  availability’  as  the  justification  for 
differentiation of pay, did not take into consideration the possible indirect discrimination 
effect  on  women,  who,  due  to  the  existing  gender  imbalance  in  the  division  of  family 
obligations, in general, are much less mobile and available to employers.98 

In a case of 14 December 2017 (II PK 322/16), the Supreme Court extended this list of 
additional  factors  which  may  influence  the  level  of  the  claimant's  remuneration  with 
‘specific  needs  of  the  employer’  and  the  ‘type  of  work  performed  by  employee  and  its 
importance  for  the  particular  employer’.  These  aspects  constitute  objective  variables 
within  the  meaning  of  Article  183b(1)  LC.  The  Supreme  Court  recalled  at  this  point,  the 
view established, inter alia, in the jurisprudence of the European Court of Justice,99 that 
there is no breach of the principle of equal treatment (prohibition of discrimination) if the 
selected  measures  (provisions)  reflect  a  justified  social  policy  objective  and  are 
appropriate and necessary to achieve that objective. 

In addition, in the judgment of 29 March 2011 (I PK 231/10) the Supreme Court stated 
that the difference in remuneration of physicians in relation to the remuneration of resident 
physicians performing the same work is justified by the method of its financing and the 

98   According to this verdict of the Supreme Court, the pay discrimination may occur only when an employee's 
remuneration noticeably (dostrzegalnie) differs from that of other employees performing equal work or 
work of equal value. It may be a contrario understood that unnoticeable (small, not significant) differences 
in pay do not, by definition, constitute discrimination. 

99   ECJ judgment of 14 December 1995, C-444/93, Ursula Megner and Hildegard Scheffel v 

Innungskrankenkasse Vorderpfalz; C-167/97, The Queen v Secretary of State for Employment; C-249/97, 
Gabriele Gruber v Silhouette International Schmied GmbH & Co. KG; of 11 January 2000, C-285/98, Tanja 
Kreil v Germany; of 6 June 2000, C-281/98, Roman Angonese v Cassa di Risparmio di Bolzano SpA; of 6 
July 2000, C-407/98, in the case of Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist; of 26 
June 2001, in the case C-381/99 of Susanna Brunnhofer v Bank der Österreichischen Postsparkasse AG; of 
27 May 2004, C-285/02, Edeltraud Elsner-Lakeberg v Land Nordrhein-Westfalen; of 12.10.2002, C-19/02, 
Viktor Hlozek v Roche Austria Gesellschaft mbH; of 10 March 2005, C-196/02, Vasiliki Nikoloudi v 
Organismos Tilepikoinonion Ellados AE; C-207/04, Paolo Vergani v Agenzia delie Entrate, Ufficio di Arona.  

39 

 
 
 
 
 
 
  
 
purpose  of  agreements  concluded  with  residents.  This  observation  is  a  consequence  of 
taking into account a justified need for which such differentiation is allowed. It may be the 
implementation of a specific employment policy, and above all, a better division of access 
to  the  labour  market  and  instruments  of  this  market  aimed  at  improving  professional 
qualifications, e.g. for young people.  

4.2.6  Requirement for comparators 

Article 183c(1) LC, regarding the guarantee of equal pay for equal work or work of equal 
value, does not additionally mention the obligation to use a comparator. Nevertheless, a 
comparator is mentioned in the general provision regarding direct discrimination provided 
for in Article 183a(3) LC, which also applies to wage discrimination on all grounds, including 
sex.  This  provision  requires,  inter  alia,  the  possibility  to  point  to  real  or  hypothetical 
comparators. This means that the necessary condition for determining if a case of direct 
discrimination in employment has taken place is the comparison of the legal situation of 
employees  placed  in  different  social  categories,  which  are  distinguished  according  to 
legally forbidden criteria. 

Prevalent  in  case  law  is  the  view  that  a  comparator  may  not  be  a  person  employed  by 
another employer.  

The  legal  definition  of  indirect  discrimination  does  not  mention  a  comparator. 
Nevertheless, commentaries on Article 183a(4) LC, incorporating the definition of indirect 
discrimination, point out that:  

‘any disparity in defining any of the conditions of employment between employees, 
encompassing  one  or  a  significant  number  of  employees  in  a  particular  category, 
must be seen as displays of discrimination in employment’.100  

The word ‘disparity’ means that there must be a comparator. 

In  the  reviewed  court  cases  concerning  wages  discrimination,  the  scope  of  comparison 
was mainly limited to the same employer.101  

The problem of admissibility of indicating as a comparator a person employed by another 
employer,  occurred  in  a  case  decided  by  the  Supreme  Court,  of  18  April  2012 
(II PK 196/11). In this case the SC overruled the argument of the claimant, comparing his 
work position to similar positions at other employers, with the following reasoning: ‘The 
ground  for  a  claim  for  damages,  according  to  Article  183d  LC  cannot  constitute  the 
argument that other employers treat their employees more favourably’. This, however, is 
precisely  what  the  comparison  conducted  by  the  claimant,  encompassing  presidents  of 
management  boards  employed  in  other  regional  broadcasting  studios,  is  all  about. 
However, with reference to employees working for the same employer, it is important to 
establish if they perform equal work, or work of equal value, because only in this situation 
do they have the right to equal wages (Article 183c(1) and (2) of the LC).102  

100  Świątkowski, A.M., Kodeks pracy. Komentarz (Labour Code. Commentary), 4th edition, C.H. Beck, 

Warszawa 2012, p. 85.  

101  Cf. e.g. case I PK 19/16 – in which the Supreme Court in its judgment of 28 March 2017 clearly stated that 
the employee, who claims to be a victim of breach by the employer of the principle of Article 183c(1) of the 
LC in conjunction with Article 183b(1)(2) of the LC (for reasons regarded as discriminatory) should set out 
the direction in which comparative analysis can be carried out by identifying the employees who are more 
highly paid, even though they carry out comparable work. Then the burden of proving that, when 
determining the remuneration, the employer was guided by objective reasons (Article 183b(1) in fine of the 
LC) passes to the employer, who may, for example, indicate that other employees do not perform work 
comparable to that of the plaintiff. The Court, of course, had in mind the employees working for the same 
employer.  

102  See also SC ruling of 7 March 2012, II PK 161/11.  

40 

 
 
 
 
 
 
 
 
 
 
 
Theoretically,  at  least  with  regard  to  state  employees,  for  whom  the  conditions  of 
remuneration  are  established  by  regulation  of  the  Ministry  of  Labour  and  Social  Policy, 
there exists the possibility to compare salaries within the same sector. However, such a 
case has not yet been identified. 

It follows from the jurisprudence that the Supreme Court accepts the expert's opinion as 
evidence in proceedings for remuneration discrimination. In particular, in the decision of 
29 May 2013 (II PK 21/13), the SC stated, inter alia, that:  

‘as  regards  discrimination  in  the  field  of  pay  for  work,  the  Court  is  competent  to 
assess independently whether employees perform equal work or work of equal value 
within the meaning of Article 18(3c)(1) of the Labour Code, or whether, in certain 
cases, it should use an expert's opinion in this respect, depends on the facts of each 
case.’ 

4.2.7  Existence of parameters for establishing the equal value of the work performed 

Some  parameters  exist  for  establishing  the  equal  value  of  the  work  performed. 
Article 183c(1) LC clarifies what should be understood as ‘work of equal value’. This is the 
kind  of  work  that  requires  comparable  professional  qualifications  from  employees, 
confirmed  by  documents,  provided  for  in  separate  regulations,  or  by  practice  and 
professional experience, as well as comparable responsibility and effort. It is worth noting 
that  in  a  judgment  of  22  February  2007  (I  PK  242/06),  the  Supreme  Court  generally 
explained  that  if  the  employers  take  into  account  such  criteria  as  length  of  service  and 
qualifications  while  establishing  the  remuneration,  they  must  prove  that  the  particular 
skills and professional experience have special significance for fulfilment of the obligations 
conferred on the employee. 

The problem of comparing work of equal value was tackled by the Supreme Court in the 
ruling of 9 February 2007 (I PK 222/06), where it noted:  

‘(...) it would be possible to compare the remuneration for the work of the claimant 
with  another  person  employed  in  the  position  of  an  accountant,  while  taking  into 
account many other circumstances (professional qualifications, previous work time, 
scope of tasks associated with the working position, responsibility, physical workload 
or  amount  of  work),  serving  as  criteria  of  evaluation  of  their  work.  It  was  not 
possible,  however,  to  compare  –  with  respect  to  the  rule  of  equal  treatment 
(Article 112 LC) and the prohibition of discrimination in employment (Article 183a LC) 
–  the  remuneration  of  the  claimant  as  accountant  with  the  remuneration  of  other 
employees, employed in the position of painters. A comparison of the wages of an 
accountant and a painter would be possible if there was a system of evaluating work, 
which currently does not exist in Poland.103 In such situation, the fact that only the 
claimant’s  remuneration  has  been  raised,  not  that  of  persons  employed  in  other 
positions,  cannot  be  regarded  in  terms  of  discrimination,  if  –  as  alleged  by  the 
claimant and omitted by the court of appeals – the defendant employer did not have 
another working position, which could be compared with the position of the claimant, 
according to the criterion of equal work or work of equal value.’  

As demonstrated by this ruling, the lack in many enterprises of a system of occupational 
classifications  for  the  purpose  of  determining  remuneration,  as  well  as  the  lack  of  a 
universal system for evaluating work and establishing criteria, allowing for comparison of 

103  The SC also stated: ‘If the employer has not implemented a system of work valuation it may be regarded 

as a violation of the principles of community coexistence as defined in Article 5 of the Civil Code, however, 
only in extreme cases. (According to this provision, one may not use his/her right in a manner that would 
be contrary to its social and economic purpose or to the principles of community coexistence. Any such act 
or refraining from acting by the entitled person shall not be treated as the exercise of the right and shall 
not be protected).’  

41 

 
 
 
 
 
 
 
 
 
various  kinds  of  work,  causes  difficulties  in  claiming  damages  resulting  from  wage 
discrimination, in cases of work of similar value.  

Such  job  classifications  apply  in  the  public  sector,  according  to  Ordinance  No.  1  of  the 
Prime  Minister,  dated  7  January  2011  (Monitor  Polski  (Polish  Monitor)  2011  No.  5  Item 
61), modified by the ordinance No. 57 of 24 July 2015 (Polish Monitor 2015, Item 724) on 
the principles of description and job valuation in the civil service.104 This ordinance, inter 
alia,  regulates  the  procedures  for  conducting  job  valuation  (by  a  specially  designated 
team).105 In the private sector, however, systems for evaluating work are applied only on 
a voluntary basis.106 

4.2.8  Other relevant rules or policies 

No other relevant rules and policies which provide parameters for establishing the equal 
value of work have been identified. The collective bargaining agreements do not usually 
directly  refer  to  application  of  the  equal  treatment  principle,  although  pursuant  to 
Article 771  of the LC, the  conditions of  remuneration should be established by way of a 
collective  agreement.107  The  provisions  of  collective  bargaining  agreements  (as  well  as 
provisions  of  employment  contracts)  infringing  the  principle  of  equal  treatment  in 
employment are deemed non-binding (Article 9(4) and Article 18(2) of the LC). 

4.2.9  Job evaluation and classification systems  

Many theoretical and more or less general and sophisticated manuals instructing how to 
make  job  evaluations  by  using  different  methods,  written  by  different  experts,  are 
available in Poland. An example of such a manual that could be applied to civil service is 
the publication  from the Chancellery of the Prime Minister in 2010, entitled  ‘Description 
and evaluation of senior positions in the civil service: Guide to good practices’.108 However, 
no  examples  of  job  classification  systems  being  used  in  concrete  situations  can  be 
identified as good practices. The same may be said in relation to the private sector.  

104  It should be added that the requirement to specify the principles of making descriptions of positions and job 
evaluations in the civil service in the above-mentioned Ordinance of the Prime Minister results from Art. 84 
S. 1 and 2 of the Act of 21 November 2008 on the civil service (unified text JoL No. 227, item 1505 as 
amended). This Act also covers the personal scope of the positions covered by the job classification. In 
accordance with Article 52 of this Act, the list includes: the Director General of the Office and Head of the 
Equivalent Unit in the Chancellery of the Prime Minister, the Minister's Office, the Office of the Central 
Authority of Government Administration, the Provincial and local Veterinary Office and the Head of the 
Organisational Unit in the Forest Seed Office, as well as the Director of the National Fiscal Information 
Office, the Head of the Revenue and Customs Office and their deputies.  

105  Annexes to the ordinance include model job descriptions, stating their place in the organisational 

infrastructure of the office, a description of the main tasks, authorisations and powers, description of the 
complexity of the work and creativity, the necessary independence and ability to show initiative, external 
contacts, factors hindering the performance of particular tasks, different from the ones traditionally 
occurring in typical administrative positions, as well as the required skills and professional experience. 
106  Different surveys have proved that the extent of work valuation practices is limited (involving only 7 % of 
small enterprises, 9 % of medium-sized enterprises and 33 % of large enterprises (having more than 250 
employees)). In most of those cases simplified methods of evaluating were used. Also worth noting is the 
very low social awareness of the use of work valuation for the elimination of the gender pay gap. 

107  An entity, employing at least 20 persons, to whom the collective agreement provisions do not apply, should 
issue (after negotiation with the employees) a special regulation on wages. Pursuant to Article 78 of the LC, 
remuneration should be determined in a manner corresponding, in particular, to the kind of work and the 
required qualifications, as well as quantity and quality of work performed. The rate (amount) of wages and 
rules of their admission in connection with the particular position or kind of performed work (as well as 
other additional components of the salary, if provided for) should be established through negotiation. In the 
case of state employees, the conditions of remuneration, if not regulated by collective agreement, will be 
established by an order of the Minister responsible for labour, taken upon the initiative of an appropriate 
Minister. The order should, in particular, provide for the conditions of establishment and payment of 
substantial wages and other additional components of the salary. The criterion of the length of service, as a 
condition for additional payment related to the kind of work or special conditions of its performance, shall 
not exceed 20 % of the additional component of the salary (Article 773 of the LC). The LC also obliges the 
employer to apply objective and just criteria in the evaluation of employees and the results of their work.  

108  Warsaw, February 2010. This publication has been produced with the financial support of the European 

Union (Social Fund). 

42 

 
 
 
 
 
 
 
4.2.10 Wage transparency 

The Labour Law does not explicitly address wage transparency. There are, however, legal 
provisions stipulating directly that the information about remuneration of certain persons 
is  public.109  There  are  two  important  court  judgments  on  this  issue:  the  Constitutional 
Court  judgment  of  7  May  2001  (K  18/00)  and  the  Supreme  Court  judgment  of  25  May 
2011 (II PK 304/10). The Constitutional Court in its judgment of 7 May 2001 (K 18/00) 
found the provisions of the Act of 3 March 2000 on remuneration of persons in charge of 
legal  entities  owned  by  the  State  Treasury  in  at  least  50 %  to  be  compliant  with  the 
Constitution  with  regard  to  the  regulations  stipulating  the  obligation  to  disclose  the 
remuneration of these persons, explaining that this information is not subject to protection 
in the same way as personal details or trade secrets. The Supreme Court in its judgment 
of 25 May 2011 (II PK 304/10), found that the fact that an employee disclosed to other 
employees information covered by the so-called salaries confidentiality clause, in order to 
prevent  unfair  treatment  and  wage-related  forms  of  discrimination,  cannot  in  any  way 
serve as grounds for dissolution of his contract of employment.110 

The problem of transparency of wages still raises many controversies in the Polish legal 
literature and case law. On the one hand, part of the doctrine and some courts share the 
opinion  of the employers, that such information constitutes trade  secrets,111 thus being 
subject  to  a  confidentiality  clause.  As  a  result,  they  approve  various  contract  clauses 
prohibiting employees from disclosing their wages, even with respect to their co-workers, 
thus allowing failures to comply with such clauses to be qualified as a severe violation of 
basic  employee  obligations, in the interpretation of  Article 52(1) LC.112 The  employer is 
entitled  to  define  the  rules  for  safeguarding  secrets  regarding  the  enterprise.  Enabling 
unauthorised  persons  to  access  company  secrets  may  constitute  a  violation  of  the 
obligation  to  preserve  secrets,  the  disclosure  of  which  could  expose  the  employer  to 
damage.113 The problem of disclosing wage information was also handled by the literature 
and case law in the context of protection of personal data of the employees. Provided that 
such  information  is  considered  as  such  data,  the  argument  is  raised  that  illegal 114 

109  As examples, certain groups of public servants or persons occupying decision-making positions, as provided 
for, e.g. in the Law of 3 March 2000 on remuneration of persons in charge of some legal entities (unified 
text JoL 2018 Item 1252).  

110  The Court additionally emphasised that ‘the exercise by an employee of the rights resulting from violations 
of the principle of equal treatment in employment, including the attempt to investigate or to provide any 
form of support to other employees, aimed at preventing the potential application of wage discrimination by 
the employer, cannot constitute the reason for termination by the employer of the contract of employment, 
regardless of the way the employee accessed the information, that may indicate a violation of the principle 
of equal treatment in employment or the application of wage discrimination.’ In this case the claimant 
received information concerning the pay of his co-workers by e-mail by mistake. Surprised by the large 
differences in the wages he decided to distribute this information among his colleagues, in order to clarify 
the situation.  

111  In the understanding of the Law of 16 April 1993 on Combating unfair Competition (consolidated text JoL 

2018 Item 419, with amendments). 

112  Which allows dissolution of work contract without notice. Compare: Judgment of the SC of 5 March 2007 (I 
PK 228/06); judgment of Appellate Court in Krakow of 15 May 2002 (I ACa 320/02). However, an employer 
who has imposed a fine on an employee or terminated the employment contract with him/her without 
notice period, in the case of a possible court dispute on this account, must take into account the high risk of 
losing the case. According to the Position of the Ministry of Labour and Social Policy of 28 August 2009 
(DPR-II-053-73143/AK/MC/09) the information on wages is, in principle, considered to be information 
relating to the employment relationship of the employee concerned and not to the functioning of the 
company as a whole. https://www.rp.pl/artykul/384044-Fragment-stanowiska-Departamentu-Prawa-Pracy-
-Ministerstwa-Pracy-i-Polityki-Spolecznej-z-28-sierpnia-2009-r--dotyczacego-kar-za-ujawnianie-zarobkow-
przez-pracownikow--DPR-II-053-73143-Ak-MC-09----------.html.  

113  Ruling of the SC of 6 June 2000, I PKN 697/99, OSNP No. 24/2001, Item 709.  
114  It should be remembered, however, that in certain cases the employer is even obliged to disclose personal 
data and the amount of remuneration of its employees. It will have to disclose such data at the request of 
law enforcement agencies, the judiciary, tax authorities, as well as National Labour Inspectorate (PIP) and 
Social Security Office (ZUS). According to the Supreme Court, the employer may oblige the employee to 
submit a certificate of earnings from the other employer in order to examine his/her legitimacy for social 
security benefits from the enterprise fund. See: Judgment of the Supreme Court of 8 May 2002 (I PKN 
267/01). The situation is unclear with trade unions, which have the competence to control the employer's 

43 

 
 
 
 
 
disclosure of salaries by employers violates the principles of  personal data protection of 
an employee and is subject to an administrative fine of up to EUR 20 000 000.115  

On the other hand, if information about the salary is to be qualified as personal goods of 
the employee,116 then he/she  cannot be forbidden to disclose this information. It is the 
employer who is obliged to preserve secrecy, not the employee.117 In the case of disclosure 
of information on the amount of remuneration of an employee, the employer is in breach 
of personal goods, for which he may be held liable for damages under the provisions of 
the Civil Code.  

There  is  general  consent,  however,  that  the  prohibition  on  disclosing  wage-related 
information  does  not  include  remuneration  tables,  which  may  determine  the  range  of 
remuneration, depending on the position, rank or qualifications. In such case it is not the 
actual amount of salary of particular employees which is being disclosed, but rather the 
range of salaries, within which their wages have to be. To summarise: the employees have 
the right to inform each other of the amount of their wages. Employees may also ask the 
employer for remuneration as in similar positions in the company, but may not ask for the 
salary of a particular person. Contract terms prohibiting employees from disclosing their 
wages shall be null and void in relation to such employees. However, the employees may 
not disclose wage information to another company, if this could jeopardise or damage the 
interests of their employer. 

4.2.11 Implementation of the transparency measures set out by European Commission’s 
Recommendation  of  7  March  2014  on  strengthening  the  principle  of  equal  pay 
between men and women  

No implementation actions were undertaken before the Recommendation of 7 March 2014 
entered  into  force.  In  2012,  the  Government  Plenipotentiary  for  Equal  Treatment 
announced  an  amendment  to  the  Labour  Code,  which  would  impose  an  obligation  on 
companies to report on differences with regard to the gender pay gap. Discovering such 

compliance with labour law, which also means the right to control the level of employees' salaries. 
However, without the consent of the employee, trade unions are not entitled to demand information from 
the employer about the amount of the employee's remuneration. Disclosure of the amount of remuneration 
for work to trade unions by an employer without the employee's consent may constitute an infringement of 
personal goods within the meaning of Articles 23 and 24 of the Civil Code. (...) Information on the amount 
of remuneration of a specific, individually determined employee is not necessary for the conduct of trade 
union activities, neither in the scope of protection of group interests nor individual interests. Information on 
the principles of remuneration is sufficient in this respect. See: Resolution of the Supreme Court of 16 July 
1993 (I PZP 28/93).  

115  Such maximum penalty (or fine up to 4 % of the total annual worldwide turnover of the company from the 
previous financial year) is provided for in the Article 83(5) of the Regulation 2016/679 on the protection of 
natural persons with regard to the processing of personal data and on the free movement of such data. 
Pursuant to Article 101 of the Law of 10 May 2019 on the protection of personal data (unified text JoL 2019 
Item 1781), the President of the Office for Data Protection may impose on an entity obliged to comply with 
the provisions of Regulation 2016/679 by way of a decision, an administrative pecuniary penalty pursuant 
to and under the conditions specified in Article 83 of the Regulation mentioned above. However, lower 
penalties up to PLN 100 000 (EUR 21 764) are provided for a public finance unit, a research institute and 
the National Bank of Poland. Exceptionally, in the case of listed public finance sector entities, the fine may 
be as low as PLN 10 000 (EUR 2 176) (Article 102).  

116  Already in 1993, the Supreme Court decided that ‘Employees have the right to remain silent about their 
employment relationship with regard to remuneration. However, this will not always mean that the 
…employer will be prohibited from disclosing such remuneration because of the prohibition to infringe the 
employee's personal goods. This will only be the case if such information can be included in the “privacy 
sphere” of the employee…. The latter would be the case if the information about the amount of 
remuneration of the employee affected his private life, e.g. disclosing the deduction of maintenance 
(alimony) claims.’ (Cf.: Resolution of the Supreme Court of 16 July 1993. I PZP 28/93).  

117  The provision of Article 111 of the Code of Criminal Procedure imposes on the employer the obligation to 
respect the dignity and other personal goods of the employee. Some of those goods (inter alia, health, 
freedom, honour, freedom of conscience, secrecy of correspondence, inviolability of housing), are listed in 
Article 23 of the Civil Code in connection with Article 300 of the Civil Code. The above catalogue is of an 
open nature, so everyday life practice constantly develops new categories of personal rights. One of them 
is, among others, the information on the employee's remuneration. 

44 

 
 
 
 
 
 
differences  would  result  in  the  taking  of  preventive  measures  and  monitoring  of  their 
implementation.  Although  this  project  has  been  supported  by  the  Supreme  Audit  Office 
(NIK) when the Office assessed the gender pay gap,118 it has not turned into a concrete 
legislative proposal. Since 2013, the Government has promised to undertake radical steps 
in  order  to  eliminate  the  gender  pay  gap.  The  Commissioner  for  Human  Rights  has 
regularly asked the Ministry in charge of labour matters to make progress in this regard.119 
While  asking  on  18  March  2016,  it  directly  requests  the  Minister  of  Family,  Labour  and 
Social  Policy  to  provide  it  with  the  copy  of  the  information  sent  to  the  European 
Commission  on  the  progress  in  implementation  of  the  European  Commission’s 
Recommendation 2014/124/EU of 7 March 2014.120  

Finally, in May 2017, a free app to measure the pay gap has been made available on the 
website of the (now called) Ministry of Family, Labour and Social Policy (MRPiPS).121 The 
Ministry  encourages  employers  to  use  this  tool,  explaining  that  providing  equal  pay  for 
equal jobs or jobs of equal value is not only an obligation for employers, but also brings 
many  advantages,  such  as:  ‘a  way  of  creating  more  attractive  workplaces,  which  will 
appeal to the most talented persons and motivate current employees’. This, on the other 
hand, translates into the greater competitiveness of a particular employer, which is very 
important,  given  the  current  situation  on  the  ‘employee  market’.  The  MRPiPS  also 
emphasises that many companies monitor the average pay with respect to different groups 
of employees. The point of reference is usually the average pay for the whole entity or a 
particular section. Without negating such an approach, the MRPiPS proposes estimation of 
the  so-called  corrected  pay  gap,  where  employees’  wages  are  compared  considering 
features such as sex, age, education, the position occupied, working time or the length of 
service. Employees are also encouraged to ‘use the option of sending the corrected gender 
pay gap to the MRPiPS, together with information indicated by the user of the application, 
which  will  only  be  used  for  statistical  purposes.’  The  Ministry  guarantees  complete 
anonymity  for  users.  The  fact  that  the  Ministry  of  Family,  Labour  and  Social  Policy  has 
prepared  this  tool  for  employers  to  measure  the  differences  in  pay  and  has  decided  to 
make it available free of charge, should be seen as a positive step. It seems, however, 
that  merely  encouraging  the  use  of  this  tool,  as  stated  in  the  introductory  letter  to 
employees, may not be enough to effectively combat the gender pay gap phenomenon, 
given the legal (constitutional and statutory) obligation to guarantee equal pay for women 
and men. The MRPiPS should be more categorical in its approach and demand the use of 
this tool by employers, especially since the statement issued by the Ministry to the effect 
that  ‘many  companies  monitor  the  average  pay  with  respect  to  different  groups  of 
employees’  does  not  contain  any  statistical  data  to  confirm  this.  In  addition,  mere 
monitoring  activities  are  not  enough  to  successfully  combat  discrimination.  This  is  the 
reason  why  the  gender  pay  gap  monitoring  tool  should  be  generally  applied  by  all 
companies (with the exception of companies which would be able to show that they use 
different yet similarly detailed monitoring tools). In addition, the periodic uploading of the 
results of such monitoring should be mandatory, rather than only possible, and information 
about  the  existence  of  such  a  tool  should  be  dispersed  as  widely  as  possible.122  It  is 

118  Former English name of NIK was Supreme Chamber of Control. In 2014, NIK prepared the report on gender 
pay gap in the public sector of employment that confirmed the differences in salaries of women and men. 
In conclusion it recommends proceeding with the project of the Government Plenipotentiary for Equal 
Treatment https://www.nik.gov.pl/aktualnosci/nik-o-wynagrodzeniu-kobiet-i-mezczyzn.html. 

119  For example: the intervention made in 2014 

(https://www.rpo.gov.pl/sites/default/files/Do_MPiPS_ws_niwelowania_roznic_w_wynagrodzeniach_kobiet_
i_mezczyzn.pdf), and the action taken in 2016 (https://www.rpo.gov.pl/pl/content/do-mrpips-ws-roznic-w-
wynagrodzeniach-kobiet-i-mezczyzn.  

120  Intervention of 19 March 2016 

https://www.rpo.gov.pl/sites/default/files/Do_MRPiPS_ws_roznic_w_wynagrodzeniach_kobiet_i_mezczyzn.
pdf. 

121  https://www.gov.pl/web/rodzina/aplikacja-do-mierzenia-nierownosci-plac, see also: 

https://www.mpips.gov.pl/aktualnosci-wszystkie/art,5543,9609,luka-placowa-w-polsce.html, 
https://infostrow.pl/biznes/kobiety-w-polsce-zarabiaja-sporo-mniej-niz-mezczyzni/cid,80064,a.  

122  This was also indicated by the Commissioner for Human Rights: http://www.rp.pl/Place/308039935-RPO-

aplikacja-do-szacowania-wynagrodzen-kobiet-i-mezczyzn-nie-wystarczy-w-walce-z-luka-placowa.html.  

45 

 
 
 
certainly not enough to put the information on the web page of the Ministry.123 It should 
be  broadly  promoted  in  the  mass  media  and  professional  publications  addressed  to 
employers and employees.  

4.2.12 Other measures, tools or procedures 

No other measures, tools or practice are identified.  

4.3  Access to work, working conditions and dismissal 

4.3.1  Definition of the personal scope (Article 14 of Recast Directive 2006/54) 

The personal scope of non-discrimination provisions in relation to access to employment, 
vocational training, working conditions, etc. is regulated in Article 2(1) and Article 2(2) of 
the Anti-Discrimination Law and in Article 2 of the LC with reference to Article 14 of the 
Directive 2006/54 EC.  

The LC only applies to the employees,  who are defined, as individuals employed on the 
basis  of  a  contract  of  employment,  appointment,  election,  nomination  or  co-operative 
contract  of  employment  (Article  2  LC).124  After  the  entering  into  force  of  the  Anti-
Discrimination  Law,  the  personal  scope  of  protection  against  discrimination  has  been 
significantly  expanded  and  covers  all  categories  of  workers  in  the  understanding  of  the 
Directive  (thus  e.g.  self-employed  persons,  persons  employed  on  the  basis  of  civil  law 
contracts).  

The Anti-Discrimination Law (Article 2(1)) stipulates that this act is applicable to natural 
and legal persons, as well as organisational units that are not legal persons, but which the 
law provides with legal capacity. According to its Article 2(2), the Anti-Discrimination Law 
does not apply with regard to employees, in areas that are regulated in the LC. 

National law does not include a definition of a ‘worker’. The notion of a worker is broader 
than that of an ‘employee’. ‘Employee’ is a term limited to persons employed on the basis 
of a labour law contract or other legal basis (for instance, the appointment of academics 
or  civil  servants  (public  officers)  who,  in  addition  to  the  protection  guaranteed  by  the 
Labour Code, also benefit from additional protection through special regulations). 

‘Workers’  may  be  self-employed  persons  or  those  employed  on  civil  law  contracts.  The 
latter in principle enjoy only the rights guaranteed in individual contracts concluded with 
the employer, which means that contrary to civil servants, for instance, they are excluded 
from the general protection provided under the Labour Code. The civil law contracts are 
very favourable for employers since they do not have the obligation to pay most of the 
social security contributions for such workers.125  

4.3.2  Definition of the material scope (Article 14(1) of Recast Directive 2006/54) 

The Constitution guarantees equal access of women and men to employment, promotion 
and  positions.  This  principle  is  laid  down  in  Article  183b of  the  Labour  Code,  underlining 
that  it  also  covers  equal  access  to  work,  vocational  training,  upgrading  professional 
qualifications,  regardless  of  whether  the  employment  is  full-time  or  part-time.  This 
principle  applies  to  every  employee,  regardless  of  the  label  of  her/his  employment 

123  Such information can be found in the news section, dated 9 January 2018; 

https://infostrow.pl/biznes/kobiety-w-polsce-zarabiaja-sporo-mniej-niz-mezczyzni/cid,80064,a. 

124  ‘An employee is a person employed under a contract of employment, appointment, election, appointment or 

cooperative employment contract.’ 

125  Some of the persons being employed on the civil contracts are conducting individual economic activities 

pursuant to the Law of 6 March 2019. The Law of Entrepreneurs (JoL 2018 Item 646).  

46 

 
 
 
 
 
 
 
 
 
 
 
 
 
contract; essential in this respect are the conditions in which the work has to be performed 
(under another person’s guidance as to the place, time and conditions of work).  

The Labour Code in this respect has been supplemented by the Anti-Discrimination Law, 
which  contains  provisions  specifying  that,  in  relation  to  employment,  the  prohibition  of 
unequal treatment of all workers, inter alia, on the grounds of sex, shall apply to: access 
to and receiving of professional training, including additional education, proficiency courses 
and  requalification  training  (vocational  orientation  and  reorientation),  as  well  as 
professional apprenticeships (practical training); conditions of undertaking and performing 
economic or professional activities, in particular in the form of an employment relationship 
or work on the basis of civil law (mandate) contracts (including the so-called managerial 
contracts); unpaid employment in the form of voluntary work; access to the activities in 
trade unions, organisations of employers and professional corporations; and access to and 
conditions for the enjoyment of publicly available instruments and services of the labour 
market.  

The scope of the protection in the above-mentioned provisions is the same as that required 
by the Recast Directive. 

4.3.3  Implementation of the exception on occupational activities (Article 14(2) of Recast 

Directive 2006/54) 

Article  5(6)  of  the  Anti-Discrimination  Law  stipulates  that  its  provisions  do  not  apply  to 
cases of differential treatment,126 if the ground for unequal treatment constitutes a real 
and crucial professional requirement for a particular person (due to the kind and conditions 
of the particular professional activity or vocational training, including such performed in 
higher  studies).  The  differential  treatment  also  has  to  be  proportional  with  respect  to 
achievement of the lawful reason for which such differentiation was made. 

The Labour Code (in Article 183b(2) Point 1) stipulates that proportionate actions aimed at 
the achievement of a legitimate aim resulting in the differential treatment of an employee 
are not contrary to the principle of equal treatment in employment. This includes, inter 
alia,  a  decision  not  to  employ  a  person,  taken  on  one  or  more  grounds,  referred  to  in 
Article  183a(1)  of  the  LC,  if  the  nature  or  conditions  of  work  would  result  in  a  situation 
where  any  of  these  grounds  constitutes  a  genuine  and  determining  occupational 
requirement for the employee.  

No  information  has  been  obtained  regarding  the  assessment  of  the  application  of 
exceptions to the prohibition of unequal treatment.  

4.3.4  Protection  against  the  non-hiring,  non-renewal  of  a  fixed-term  contract,  non-
continuation  of  a  contract  and  dismissal  of  women  connected  to  their  state  of 
pregnancy and/or maternity 

Generally speaking, the scope of protection of  the employment of pregnant women and 
persons  on  maternity  leave  is  sufficient,  with  the  exception  of  certain  categories  of 
employees (employed for a short probationary (trial) period or as temporary replacement 
for other employees).  

Article 177 of the LC states that, in principle, an employer may not terminate a contract 
of  employment  with  a  female  employee  who  is  pregnant  or  on  maternity  leave,  unless 
exceptions apply,127 such as employment for a probationary (trial) period not exceeding 

126  The differentiation of the treatment may be related to the possibility and conditions of undertaking and 

performing professional activity and undertaking, participating or completing vocational training. 

127  In the opinion of the Supreme Court, it is irrelevant for the protection of pregnant women from dismissal 
whether the employee was aware of her pregnancy, the employer had been informed about this fact, or 

47 

 
 
 
 
 
 
 
 
 
 
 
 
one  month  (Article  177(2)  LC).  In  the  case  of  an  employment  contract  concluded  for  a 
definite  period  of  time,  or  for  a  trial  period  exceeding  one  month,  terminated  after  the 
third  month  of  pregnancy,  protection  is  extended  until  the  day  of  childbirth 
(Article 177(3)),128 unless such employment contract was concluded in order to replace an 
employee during an excusable absence from work (Article 177(31) LC). 

It follows from that provision that entitlement to maternity allowance is also granted to a 
woman  employed under an  employment  contract for a fixed period which ended before 
the birth of the child. If it occurs after the third month of pregnancy, she acquires the right 
to  maternity  allowance  for  the  period  corresponding  to  the  basic  maternity  leave  and 
parental  leave,  that  is,  for  a  maximum  of  52  weeks.129  If  the  employment  contract  is 
terminated after the day of childbirth and if that person was still subject to compulsory 
sickness  insurance  on  that  day,  she  is  entitled  to  maternity  allowance  even  after  the 
termination  of  that  insurance.  In  such  a  situation,  the  entity  granting  the  benefit  and 
determining its amount is the Social Insurance Institution (ZUS). This is also an important 
solution  for  women  who  gave  birth  to  a  child  during  the  period  of  receiving  the 
unemployment benefit or within one month after its termination. They are entitled to an 
extension  of  the  period  of  payment  of  this  benefit.  As  a  result,  they  are  entitled  to 
unemployment benefit for the period corresponding to the period of maternity leave and 
for the period corresponding to the period of parental leave. 

There are no legal obstacles preventing the employer from refusing the extension of an 
employment contract concluded for a definite period of time  with the women entitled to 
maternity/parental  leave.130  According  to  the  State  Labour  Inspectorate  post-inspection 
report, there were many such cases, occurring after maternity leave. It should be noted 
that  provisions  of  the  LC  do  not  oblige  the  employer  to  provide  an  explanation  for 
termination of definite period contracts, which facilitates quick and easy dismissals of such 
employees.131 

It is worth noting that the Act on the employment of temporary workers132 in Article 13(3) 
extends a fixed-term employment contract of at least two months long for the period up 
to the date of childbirth.  

In  the  context  of  the  employment  contracts,  the  Supreme  Court  addressed  the  more 
general  question  of  whether  any  violation  of  labour  law  against  pregnant  women 
constitutes discrimination. In this case, the female worker became pregnant after being 
employed for replacement and she was dismissed on the same day as she gave birth to 
her child. The law allows for dismissal of the pregnant woman working ‘in replacement’, 
however, the employer should observe a three-day notice period, which he had failed to 
do. In the judgment of 3 December 2009 (II PK 142/09), the Supreme Court ruled that 
the mere wrongful termination of an employment contract with a pregnant woman does 
not yet determine the recognition of the employer's conduct as discriminating against an 
employee.  In  order  to  assess  the  employer's  behaviour  in  terms  of  violation  of  the 
prohibition  of  equal  treatment  in  employment,  it  is  important  to  examine  whether  the 

that the pregnancy was terminated by miscarriage. The only thing that matters is the objective existence of 
pregnancy at the moment of dismissal. 

128  Since 22 February 2016, when the amendments of the LC, introduced by the Law of 25 June 2015 (JoL 

2015 Item 1220) came into force, the provision on extending a labour contract, mentioned in Article 177(2) 
LC, will not be applied to women employed for the period necessary to perform a specific task 
(Article 177(3) LC). 

129  In the jurisprudence it is assumed that the protection is granted only after 3 months, which means 85 days. 

Cf. judgment of the Supreme Court of 15 January 2019, II PK 252/17.  

130  Although according to Article 1773 LC, a contract for a definite period of time, or for a trial period exceeding 

one month, which would expire after the third month of pregnancy, shall be extended to the day of 
delivery. 

131  See: Results of investigation on the layoffs of persons returning from maternity, paternity, and parental 

leave and the observance of other employee rights, State Labour Inspectorate, Warsaw 2014 
https://www.pip.gov.pl/pl/f/v/100996/sprawozdanie2013.pdf. 

132  Law of 9 July on the employing of temporary workers, consolidated text 2018, Item 594 with amendments. 

48 

 
 
 
 
 
 
employer's actions leading to termination of the employment relationship were taken due 
to  the  fact  that  the  employee  possessed  features  or  properties  listed  as  discrimination 
grounds,  for  example,  in  Article  183a(1)  of  the  LC.  Only  simultaneous  breach  of  the 
prohibition of discrimination by the employer results in a separate claim for compensation 
on the part of the employee, as specified in Article 183d of the Labour Code. 

In one case, allegations were made against the employer by a mother of five children, who 
was,  among  other  things,  refused  vocational  training.133  The  court  of  first  instance  and 
second  instance  issued  unfavourable  judgments  for  the  claimant,  finding  that,  by 
differentiating the situation of the claimant in terms of access to training, comparing to 
other  employees,  the  defendant  applied  legally  acceptable  criteria.  Eventually,  the 
Supreme Court, in the judgment of 8 January 2008 (II PK 116/07), gave a positive decision 
for claimant, noting, inter alia, that:  

‘the exercise of powers conferred by law in connection with the birth and upbringing 
of the child cannot constitute a reason to omit a worker from the selection of workers 
for training to improve professional qualifications’  

and ruled that it constituted discrimination on the grounds of sex and family status. 

There  have  been  cases  where  courts  have  held  a  similar  position,  e.g.  in  respect  of  a 
woman who has been dismissed for being of low usefulness for the employer because of 
her pregnancy-related health problems. The ruling of the SC of 8 July 2008 (I PK 294/07) 
may serve as an example, the major point being as follows:  

‘Acceptance for the position that absence from work of a female-employee caused 
by endangered pregnancy, followed by miscarriage and health complications, may 
constitute justified grounds for terminating her employment contract and justify the 
refusal of accepting her back to work, due to its purposelessness, would violate the 
rules  regarding  protection  of  motherhood  and  may  even  be  considered  as 
discrimination with regard to sex’.  

In  another  first-instance  ruling  of  3  August  2016,  the  District  Court  for  Wrocław 
Śródmieście  rightly  found  that  immediate  termination  of  employment  of  a  pregnant 
woman, for alleged violation of her obligation of loyalty towards the employer, expressed 
in frequent use of legitimate and justified periods of medical leave, constituted a wrongful 
termination of the employment relation, violating Article 2 and Article 33 of the EU Charter 
of Fundamental Rights, as well as Article 2 Paragraph 1 and Article 8 Paragraph 1 of the 
76/207 Council Directive. The court also referred to rulings of the Court of Justice in cases 
C-460/06134 and C-177/88.135 This position was shared by the Supreme Court, dismissing 
the employer's appeal136. 

A similar decision was made in the same Court (District Court of Wrocław Śródmieście) on 
12 January 2016 in case X P 310/15. The Court, justifying the recognition of the claim for 
compensation for wrongful dismissal due to the use  of sick leave during pregnancy and 
later  in  connection  with  illnesses  of  a  child,  decided  that  the  circumstances  of  the  case 
indicated a breach of the provisions of the law related to termination of the employment 
contract  concluded  with  the  claimant,  but  also  a  breach  of  the  principles  of  social 
coexistence (Article 8 of the Civil Code). The claimant was entitled to sick leave due to the 

133  The employer argued that low remuneration of the claimant and her omission from the selection for 

trainings was, inter alia, the result of her frequent absence from work due to frequent use of maternity and 
parental leave.  

134  Judgment of the Court (Third Chamber) of 11 October 2007. Nadine Paquay v Société d’architectes Hoet + 

Minne SPRL, ECLI:EU:C:2007:601. 

135  Judgment of the Court of 8 November 1990. Elisabeth Johanna Pacifica Dekker v Stichting 
Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus. ECLI:EU:C:1990:383.  

136  Ruling of the District Court for Wrocław Śródmieście of 3 August 2016 XP 20/16. 

49 

 
 
 
 
 
 
 
 
 
necessity of caring for a child under two years of age, due to the child’s medical condition 
and  the  lack  of  an  option  to  take  advantage  of  third  parties'  assistance  in  this  respect. 
Difficulties  faced  by  employees  exercising  parental  rights  are  well-known  in  Poland. 
However, it should be remembered that broadly understood, maternity and related rights 
are covered by the protection and care of the State under the Constitution of the Republic 
of Poland (Article 18), i.e. a legal act of the highest legal force. It follows from the above 
that  the  public  authorities  are  obliged  to  take  measures  aimed  at  the  fullest  possible 
protection of motherhood against any threats which could hinder the full exercise of this 
function. The obligation to protect motherhood is fulfilled, inter alia, by enactment of the 
law which enables a woman to reconcile motherhood with employment. In doing so, the 
legislator has introduced a number of rights related to motherhood and parenthood in both 
labour law and social security. They are related to: health care, upbringing of a child up 
to 14 years of age, family and care benefits, maternity leave, parental leave and protection 
of the employment relationship. It is characteristic, however, that the court, stating that 
the absence of the plaintiff from work was closely related to motherhood, did not treat the 
case of the claimant as a manifestation of discrimination on the grounds of gender and did 
not award compensation under this title.  

4.3.5  Implementation  of  the  exception  on  the  protection  for  women  in  relation  to 

pregnancy and maternity (Article 28(1) of Recast Directive 2006/54) 

The prohibition of pregnant and breastfeeding women performing certain jobs, provided 
for in Article 176 LC, has an absolute character, which means that the law does not provide 
any exceptions from it. 

4.3.6  Particular difficulties 

No particular difficulties were identified in the application of the current rules concerning 
equal  access  to  work,  vocational  training,  employment  contracts,  working  conditions, 
promotion and protection against dismissal on grounds connected to sex.  

4.3.7  Positive action measures (Article 3 of Recast Directive 2006/54)  

No  legislation  has  been  identified  that  would  explicitly  allow  preferential  treatment  of 
women  in  access  to  promotion  or  give  them  priority  in  their  selection  for  vocational 
training.  

4.4  Evaluation of implementation 

The  scope  of  protection  of  workers  in  terms  of  access  to  employment,  training,  etc. 
appears to be in line with the requirements of, inter alia, Directive 2006/54/EC, with the 
exception of regulations relating to exemptions. The scope of exemptions provided for in 
the Anti-Discrimination Law includes a wider range of exceptions to the equal treatment 
rule than those provided for in Article 14(2) of Directive 2006/54/EC. Firstly, it speaks of 
exceptions not only in the context of performing professional activity, but also undertaking 
access  to  professional  activity  (including  training).  Secondly,  it  provides  for  wider 
exceptions to the rule of equal treatment with regard to vocational training. Those may 
include  not  only  undertaking  of  the  training,  as  is  the  case  in  the  Directive,  but  also 
participating in such training and finishing it.  

4.5  Remaining issues 

It is worth mentioning that in light of the Polish law, a refusal to employ a candidate on 
the grounds of, inter alia, sex, is subject to a fine pursuant to Article 123 of the Act of 20 
April 2004 on Promotion of Employment and Labour Market Institutions. Such a violation 
of the law is treated as a contravention. The wording of this provision is as follows: 

50 

 
 
 
 
 
 
 
 
 
 
 
 
‘Whoever  on  grounds  of  sex,  age,  disability,  race,  religion,  nationality,  political 
opinion, ethnic origin, religion or sexual orientation refuses to employ a candidate in 
a vacant job or a vocational training place shall be subject to a fine not lower than 
PLN 3 000 (EUR 697.70).’ 

For a long time, the problem in Poland  was job advertisements, which by indicating the 
gender of the desired candidate, discriminated against candidates for employment on the 
basis of their sex (sometimes in relation to age).137 To a certain extent, this phenomenon 
has been limited by the use of the above-mentioned provisions in such cases.138 

It happened, however, that some courts also pronounced the judgments unfavourable for 
the  candidates  for  a  job,  who  tried  to  prove  the  discriminatory  character  of  such 
advertisements, not only in theory but also in practice.  

In one case of the District Court of Warsaw (which acted as a second instance court), the 
justification put forward by the court of lower instance to reject a sex discrimination claim 
was the suspicion that the claimant (a man) called different employers, who had advertised 
in newspapers a secretary position aimed explicitly at women, not actually wanting to be 
recruited, but seeking to obtain compensation for discrimination on the grounds of sex, if 
he  was  turned  down  for  the  job.  The  fact  that  the  applicant  recorded  interviews  with 
employers who had issued such advertisements would, in the opinion of the court of first 
instance,  indicate  such  intentions.  Eventually  the  District  Court  awarded  him  damages 
recognising sex discrimination in access to employment, explaining that it did not share 
the opinion of the court of first instance, that the claimant had undertaken all the above 
actions  regarding  the  job  application  only  with  the  objective  of  claiming  respective 
damages,  because  at  the  time  when  the  claimant  conducted  the  respective  telephone 
conversation with a representative of the defendant, he was not employed anywhere. He 
was  a  student  and  there  were  no  reasons  which  would  prevent  him  from  commencing 
employment, had he been offered  it. In this situation, according to the court of  second 
instance, there was no  evidence that the  claimant did not have the intention to initiate 
employment at the defendants’  enterprise,  although he also  called two other  firms who 
produced similar advertisements.139  

Due  to  special  circumstances  related  to  the  pandemic,  the  legislator  introduced  new 
solutions aimed at counteracting the effects of the crisis situation caused by coronavirus. 
The introduced packages of solutions (i.e. laws with possible amendments, regulations and 
possible further solutions contained in regulations, programmes, etc.) have been  named 
as Anti-Crisis Shields, numbered consecutively from 1 to 8.  

The Anti-Crisis Shields enabled employers to reduce the working hours of their employees 
and  to  introduce  less  favourable  employment  conditions.  An  employer  who  has 
experienced  a  decrease  in  revenue  from  the  sale  of  goods  or  services  as  a  result  of 
COVID-19 and has therefore experienced a significant increase in the burden on the wage 
fund may: 

1) reduce the employee’s working time by a maximum of 20 %, up to a maximum 
of 0.5 full-time positions, provided that the remuneration cannot be lower than the 
minimum  wage,  taking  into  account  the  employee’s  working  time  prior  to  the 
reduction; 

137  The research carried out by the Polskie Towarzystwo Prawa Antydyskryminacyjnego (Polish Society of Anti-
Discrimination Law) in 2010 showed that out of the 6 000 job advertisements surveyed, over half indicated 
explicitly (or not explicitly) the criterion which is prohibited, http://www.ptpa.org.pl/publikacje/publikacje-
raporty/ and http://weblog.infopraca.pl/2011/01/kara-finansowa-za-dyskryminacje-w-ogloszeniach-o-
prace-w-polsce/.  

138  That is, of Article 123 of the Law on Promotion of Employment and Labour Market Institutions.  
139  District Court of Warsaw, judgment of 22 December 2008, VII Pa 35/08.  

51 

 
 
  
 
 
 
 
 
2)  subject  the  employee  to  economic  downtime,  provided  that  the  employer  pays 
the employee subject to economic downtime a wage reduced by no more than 50 %, 
but  not  less  than  the  minimum  wage,  taking  into  account  the  length  of  working 
hours.140 

The  use  of  the  possibility  to  reduce  the  working  time  or  to  introduce  less  favourable 
conditions  of  employment  had  particularly  negative  consequences  for  women  who  gave 
birth during the pandemic, as it affected the reduction of sickness benefits received during 
pregnancy and maternity benefits. Pursuant to Article 40 of the Act of 25 June 1999 on 
monetary benefits  from social insurance in the case of  sickness and maternity (uniform 
text in JoL of 2020, item 870, as amended), in the case of a change of an employment 
contract or another act on the basis of which the employment relationship was established 
consisting  in  the  change  of  the  working  time,  the  basis  for  sickness  benefit  is  the 
remuneration established for the new working time if the change took place in the month 
in which inability to work arose or during the 12 calendar months preceding the month in 
which inability to work arose. 

This situation has been remedied by an amendment. The rules for determining the basis 
of calculation of sickness benefit that accrues during pregnancy and maternity benefit for 
persons whose employer reduced their working hours on the basis of the COVID-19 Act 
were amended by the Act of 7 October 2020 on amending certain acts to counteract the 
socio-economic  effects  of  COVID-19  (JoL,  item  1747).  From  16 December 2020,  the 
benefit  is  calculated  in  such  a  way  that  the  reduction  in  working  hours  related  to  the 
pandemic does not adversely affect the benefits. The new rules consist in  the fact that, 
when determining the basis of calculation of these benefits due to persons for whom the 
employer  reduced  the  working  time  or  introduced  less  favourable  conditions  of 
employment than those resulting from the employment contract, only the remuneration 
after the change in working time is not taken into account for the purpose of determining 
the basis of calculation of benefits, so that the change in working time does not reduce 
the period from which the basis of calculation of benefits is determined. Also, periods of 
reduced working hours are not taken into account, which means that when establishing 
the benefit assessment basis: 

- the employee’s remuneration for the months in which they worked on reduced 
hours shall be excluded, 
- the remuneration for the full calendar months before the reduction of working 
hours (or the establishment of less favourable conditions of employment), from the 
12 calendar months preceding the month in which the incapacity for work arose, 
shall be taken. 

The basis of assessment of the sickness benefit of a pregnant insured woman and of the 
maternity benefit of persons for whom, on the basis of the COVID-19 Act, the employer 
reduced the working hours or introduced less favourable conditions of employment, paid 
before 16 December 2020, shall be determined again if the benefit paid on the basis of 
the previous regulations is lower than the benefit determined in accordance with the new 
regulations. Recalculation of the benefit assessment basis shall be made at the request 
of the recipient. 

140  Pursuant to Article 15g, 15zf, 15gb or 15zzzzzo(2) of the Act of 2 March 2020 on special solutions relating 

to the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations 
caused by them (i.e. JoL of 2020, item 1842, as amended), otherwise known as the Anti-Crisis Shield 1.0 
(hereinafter: COVID-19 Act). 

52 

 
 
 
 
 
 
5 

Pregnancy,  maternity,  and  leave  related  to  work-life  balance  for  workers 
(Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and 
2019/1158)141 

5.1  General (legal) context 

5.1.1  Surveys and reports on the practical difficulties linked to work-life balance  

In  Poland  over  the  last  five  years  many  surveys  related  to  different  issues  of  work-life 
balance have been conducted. Some of them follow, on regular basis, the evolution of the 
use by parents of childbirth and care-related leave. According to the Ministry of Family, 
Labour  and  Social  Policy,142  in  the  period  from  January  to  December  2016,  669 000 
persons,  in  total,  took  advantage  of  the  leave  dedicated  to  parents,  amongst  which 
507 700 (76 %) were women and 161 300 (24 %) were men. In the same period of 2017, 
the  total  share  of  maternity  or  parental  leave  increased  to  707 800:  among  them,  the 
percentage  of  mothers  decreased  to  74  %  (519 100)  and  fathers  increased  to  26 % 
(194 700). It means that more and more fathers take advantage of this opportunity. This 
increase  is  constant  and  quite  spectacular.  In  the  period  of  time  from  January  until 
December  2015,  paternal  leave  was  granted  to  115 400  fathers.  In  the  same  period  of 
2017, this number already amounted to 174 200 fathers, which constitutes an increase by 
66 %. Although the increase in interest in taking maternity and parental leave is visible 
throughout  the  country,  still  only  around  a  quarter  of  those  taking  advantage  of  it  are 
fathers. 

The lower amount of leave taken by men can be explained by economic factors (women 
earn less than men, hence families are more likely to decide that the leave should be taken 
by the person whose financial contribution to the family budget is smaller). The cultural 
factor is also important. Polish society is still a patriarchal one, in the authors’ opinion. At 
home,  on  the  other  hand,  the  matriarchy  prevails,  where  the  woman  makes  all  the 
decisions,  including  matters  regarding  childcare.  Men  are  often  considered  to  be  less 
resourceful in this area.143  

Information on the practice of reconciling work and family responsibilities can be found in 
the  reports  of  the  Central  Statistical  Office.144  The  most  recent  data  on  this  subject  is 
contained  in  the  GUS  Report  ‘Work  and  family  duties  2018.’145  The  target  group  of  the 
GUS  survey  were  22  969  000  people  aged  18-64.  In  this  group,  37.3  %  (8  574  000) 
declared that they take care of their own children under 15, or other family members aged 
15 or more in need of care. The provision of care was clearly more frequent among women 
– 41.6 % (4 783 000) than among men – 33.1 % (3 791 000). Women, to a much greater 
extent than men, felt the impact of childcare responsibilities related to children under 15 
years  of  age  on  their  current  professional  situation  –  25.8 %  compared  to  only  9.3 %. 
During the survey, 6.3 % of women worked part-time. In the group of part-time workers, 
as  many  as  33.8  %  indicated  that  the  reduction  in  working  time  was  due  to  childcare 
responsibilities.  These  were  expected  to  be  mostly  women.  During  the  survey  period, 
nearly  6  %  of  respondents  took  parental  leave.  The  results  of  the  survey  showed  that 
career breaks related to the care of children under 15 years of age affect almost exclusively 

141  See Masselot, A. (2018), Family leave: enforcement of the protection against dismissal and unfavourable 
treatment, European network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-
dismissal-and-unfavourable-treatment-pdf-962-kb and McColgan, A. (2015), Measures to address the 
challenges of work-life balance in the EU Member States, Iceland, Liechtenstein and Norway European 
network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/3631-reconciliation. 

142  https://www.mpips.gov.pl/aktualnosci-wszystkie/art,5536,9677,wiecej-urlopow-rodzicielskich-.html.  
143  http://www.mjakmama24.pl/rodzice/kacik-taty/urlop-dla-ojca-dlaczego-tak-niewielu-mezczyzn-korzysta-z-

urlopu-tacierzynskiego,170_8122.html. 

144  Reports of the Central Statistical Office are available at: www.stat.gov.pl. 
145  Informacje Statystyczne GUS: ‘Praca a obowiązki rodzinne w 2018 r.’ (Statistical Information of GUS. Work 

and family responsibilities in 2018), 2019, available at: www.stat.gov.pl.  

53 

 
 
 
 
 
 
 
the female population (97.1 %). Among women who currently work or have worked in the 
past, the most frequently indicated period of childcare breaks was from six months to one 
year (13.5 %), then from one to two years (12.7 %) and from two to three years (10.1 %). 
The lowest number of women had a break lasting longer than five years (7.2 %).146 

The study also examined the use of various forms of support to combine work with family 
responsibilities: flexible working time (i.e. the possibility of deciding when to start and end 
a  working  day)  and  the  possibility  of  taking  one  day  off  without  taking  leave.  Flexible 
working time was relatively easy for 26.6 % of people to take advantage of, in exceptional 
cases,  18.9 %  of  people.  Others  did  not  have  this  option.  The  option  to  take  a  day  off 
without taking holidays was slightly worse: 23.3 % of respondents could take it relatively 
easily, whereas 17.4 % could take advantage of it only in exceptional cases.147 

The Institute for Structural Research's study on the structure of employment of mothers 
and fathers and the use of institutional forms of childcare provides interesting data on this 
topic.148 According to data from 2013, the employment rate of childless women and men 
aged 20-50 was 70 % for men and 66 % for women. However, in the case of parents of 
one  child  under  12  years  of  age,  it  was  90.1 %  for  men  and  65.4 %  for  women.  The 
percentage of mothers and fathers of children under 12 years of age who were inactive 
due to childcare was 18.7 % for women and 0.5 % for men. In addition, 2.6 % of women 
and 0.1 % of men worked part-time due to the need for childcare. Studies show that the 
gap in the employment rate between mothers and fathers of children under the age of 12 
decreases with the age of the youngest child. At the same time, the gap increases with 
the  arrival  of  a  third  child  and  subsequent  children  in  the  family.  The  researchers 
emphasise the specific situation of parents with higher education, for whom the gap seems 
to be less dependent on the number of children. As parents' education increases, the gap 
decreases. The study also examined the working time of parents of children up to 12 years 
of age. In 2013, 12 % of mothers and 31 % of fathers worked more than 40 hours a week. 
The  report  noted  a  significant  difference  between  mothers  and  fathers  in  this  respect: 
fathers  were  found  to  work  overtime  more  often  than  other  men  (31  %  and  27  % 
respectively), while mothers were found to work overtime less often than other women. 
The frequency  of  overtime work among parents increases  with the age of the  youngest 
child. 8 % of mothers and 30 % of fathers of children under 3 years of age and 14 % and 
32 % of children between 7 and 12 years of age work overtime.149 The study additionally 
presents the level of use of institutional forms of childcare (data from 2012). Nearly 4 % 
of children up to 3 years of age were cared for by a crèche or a children's club. Among 
children aged 3 to 5, 70 % were  covered by  pre-school education. This percentage has 
increased by 29 percentage points since 2005. This increase concerns mainly rural areas, 
where in 2005 only 19 % of children used kindergarten services, and in 2012 as many as 
51 % (in the city, 58 % in 2005 and 84 % in 2012). Children attending primary schools 
(from the age of six) during their stay outside compulsory school activities may be covered 
by day-care centre care. In the school year 2012/2013, 61 % of all primary schools had a 
such a centre. It is worth  noting the data on which parents provide childcare in case of 
illness. According to the replies of the respondents, this obligation is incumbent on women 
(always  or  usually)  in  66  %  of  cases.  In  21  %  of  cases,  respondents  shared  this 

146  Informacje Statystyczne GUS: ‘Praca a obowiązki rodzinne w 2018 r.’ (Statistical Information of GUS. Work 

and family responsibilities in 2018), 2019, available at: www.stat.gov.pl. 

147  Informacje Statystyczne GUS: ‘Praca a obowiązki rodzinne w 2018 r.’ (Statistical Information of GUS. Work 

and family responsibilities in 2018), 2019, available at: www.stat.gov.pl. 

148  Magda, I., Kamińska, A., Potoczna, M.: ‘Wskaźniki monitorowania Programu Polityki Rodzinnej Prezydenta 

RP’ (‘Monitoring indicators of the President of the Republic of Poland's Family Policy Programme’), Survey of 
Instytut Badań Strukturalnych, Warszawa 2014 (available at: 
http://ibs.org.pl/app/uploads/2015/09/Wskazniki_I_-
_monit_Programu_Polityki_Rodzinnej_Prezydenta_RP_2014.pdf). 

149  Magda, I., Kamińska, A., Potoczna, M.: ‘Wskaźniki monitorowania Programu Polityki Rodzinnej Preźydenta 

RP’ (‘Monitoring indicators of the President of the Republic of Poland's Family Policy Programme’), Survey of 
Instytut Badań Strukturalnych, Warszawa 2014 (available at: https://ibs.org.pl/publications/wskazniki-
monitorowania-programu-polityki-rodzinnej-prezydenta-rp/).  

54 

 
 
 
 
responsibility  equally.  Responses  indicating  more  frequent  involvement  of  a  man  are 
rare.150 

Statistical data provided by GUS demonstrates that the percentage of children covered by 
institutional forms of childcare has increased in the following years. For example, in 2017 
the  total  number  of  crèches  and  children's  clubs  increased  by  15.1  %  compared  to  the 
previous year. However, the vast majority of childcare facilities for children under 3 are 
private – 76.0 % of the total number of all facilities. They accounted for 52.8 % of the 
total  number  of  places  and  49.8  %  of  children  stayed  there151.  In  the  school  year 
2015/2016, in the age group of children aged 3 to 4 years, 77.3 % were in pre-school care 
(92  %  in  cities  and  55  %  in  rural  areas).  In  2016/2017,  both  groups  fell  by  around  1 
percentage point to 76 % overall (92 % in cities and 54 % in rural areas).152 

Also worth mentioning is the study conducted in 2016 by the Centre for European Projects 
(Centrum  Projektów  Europejskich)  called  ‘Rozwiązania  na  rzecz  godzenia  życia 
zawodowego  i  rodzinnego  w  Polsce.  Raport  z  pogłębionej  analizy  danych  zastanych’ 
(‘Solutions for reconciling professional and family life in Poland: Report from an in-depth 
analysis of collected data’).153 It includes an analysis from research conducted in this area 
in 2016, in Poland and selected other countries. Authors of this study identified problems, 
mentioned  in  studies  of  other  entities,  concentrating  on  examining  legal  measures  and 
identifying examples of discrimination in this area, while describing actions undertaken by 
various employers in order to promote work family- life- balance (good practices).  

Similar issues were raised in the study ‘Parenthood related rights: Manifestations of sex 
discrimination’,  commissioned  by  the  NGO:  Women’s  Congress  (Kongres  Kobiet)  in 
2016,154  as  well  as  in  the  earlier  survey  carried  out  by  the  Ogólnopolskie  Porozumienie 
Związków Zawodowych (OPZZ), one of the two main trade unions in Poland, which among 
others included questions regarding the respecting of parenthood-related rights.155 Some 
legal  offices  also  perform  fragmentary  examinations  of  jurisprudence  and  the  issue  of 
access to court, among other issues in the subject matter of parental rights.156 

Diagnoses of the situation related to work/family- life balance are provided by the report 
prepared  by  the  Commissioner  for  Human  Rights,  entitled:  ‘Diagnosis  of  the  presented 
statistical data. Reconciliation of family and professional roles. Equal treatment of parents 
in  the  labour  market.  Analysis  and  recommendations’  published  in  2015.157  The  main 

150  Magda I., Kamińska A., Potoczna M, ‘Wskaźniki monitorowania Programu Polityki Rodzinnej Prezydenta RP’ 
(‘Monitoring indicators of the President of the Republic of Poland's Family Policy Programme’), Survey of 
Instytut Badań Strukturalnych, Warszawa 2014 (available at: https://ibs.org.pl/publications/wskazniki-
monitorowania-programu-polityki-rodzinnej-prezydenta-rp/).  

151  See: https://www.dlaprzedszkolaka.info/s/3180/67604-Przedszkola-w-liczbach.htm.  
152  ‘GUS: Education in 2016/2017 school year’ – yearbook providing a wide selection of data and analyses 

reflecting the condition and dynamics of the Polish education system, 
https://stat.gov.pl/files/gfx/portalinformacyjny/pl/defaultaktualnosci/5488/1/12/1/oswiata_i_wychowanie_
w_roku_szkolnym_2016-2017.pdf.  

153  This project was co-financed from EU funds within the European Social Fund. The results are published: 
https://docplayer.pl/56999829-Rozwiazania-na-rzecz-godzenia-zycia-zawodowego-i-rodzinnego-w-
polsce.html. 

154   The study ‘Uprawnienia związane z rodzicielstwem. Przejawy dyskryminacji ze względu na płeć’ (Parental 

rights. Manifestations of discrimination based on sex) was performed by Dziewanowska, M. and Płatek, M.  
155   Cf.: results of the OPZZ survey regarding the problem of discrimination and mobbing in the workplace and 
respecting employee rights related to parenthood in 2012. This survey showed inter alia that 76 % of 
interrogated persons did not experience abuses regarding paying of pregnancy and maternity -related 
benefits, while only 6 % confirmed that they had such experiences. 2.6 % of this group noted that this was 
connected with problems relating to maternity leave, 
https://www.opzz.org.pl/assets/opzz/media/files/2c380e8c-7df9-47d0-bab9-39180acfa256/wyniki-ankiety-
opzz-nt-rodzicielstwa.pdf. 

156  See e.g. http://kancelaria.prawna.warszawa.pl/dyskryminacja-osob-korzystajacych-z-uprawnien-

rodzicielskich/. 

157  Report of the Commissioner for Human Rights ‘Godzenie ról rodzinnych i zawodowych. Równe traktowanie 

rodziców na rynku pracy. Analiza i zalecenia’ (Reconciliation of family and professional roles. Equal 
treatment of parents in the labour market. Analysis and recommendations) issued in the series: Principles 

55 

 
 
 
 
 
 
 
objective  of  the  study  was  to  analyse  the  limitations  of  economic  activation  of  young 
mothers (understood as their willingness to undertake activity in the labour market) and 
the  realisation  of  the  right  of  young  fathers  to  engage  in  family  life  resulting  from 
difficulties in reconciling professional and family roles. These phenomena were identified 
at the level of organisation practices, individual parental strategies and social policy, taking 
into  account  the  opinions  of  trade  unions  and  employers'  organisations.  Research  has 
confirmed that women are primarily responsible for childcare and unpaid domestic work, 
while fathers are only occasionally involved in childcare and domestic responsibilities. The 
lower position of women in the labour market, particularly in relation to the wage gap, is 
an  important  factor  influencing  parents'  decision  for  full  custody  of  their  children  to  be 
taken exclusively by the mother.158 Among the key problems of reconciliation of work and 
private  life,  research  participants  pointed  to  the  inefficiency  of  institutional  forms  of 
childcare and insufficient availability of flexible forms of employment. The availability of 
public  nurseries  and  kindergartens,  despite  some  improvements,  continues  to  be 
insufficient. Besides, those institutions usually do not operate in the afternoon, when many 
parents are still working. Another problem is the lack of full availability of institutional care 
(kindergartens  and  schools)  during  holidays  and  vacations.  These  factors  mean  that 
parents have to use private institutions or arrange informal childcare. A major challenge 
for  young  parents  is  also  the  requirements  set  by  their  employers.  They  do  not  always 
take into account the needs of workers in relation to their family roles. Holidays, longer 
leave,  the  need  to  go  out  during  the  day,  e.g.  to  visit  a  doctor,  to  a  parent-teacher's 
appointment or to a kindergarten meeting, in the opinion of the parents surveyed, often 
does not meet with a positive attitude from employers.159 The analysis presented in this 
report was the basis for formulating recommendations for further actions to be taken to 
implement the principle of equal treatment of women and men in the area of employment 
and family life. The Commissioner stressed that due to the specific nature of the issues at 
stake,  close  cooperation  between  public  authorities  and  social  partners  is  essential.  It 
should  be  underlined  that  after  this  report  was  published,  some  of  the  Commissioner’s 
recommendations  have  been 
important 
recommendations of the Commissioner, which still await implementation, especially worth 
mentioning are:  

implemented.160  Among 

the  most 

• 

• 

Introduction  of  educational  measures  aimed  at  counteracting  the  stereotypical 
perception of social roles of women and men, as well as supporting the sense of joint 
responsibility  of  men  and  women  for  the  upbringing  and  development  of  their 
children.  
Dissemination  of  knowledge  on  anti-discrimination  provisions  relating 
to 
employment, including the protection of pregnant women and parents using parental 
rights. Intensification of control of labour law observance in this area. 

of equal treatment. Law and Practice No. 18, Bulletin of the Ombudsman 2015, No. 7. The Report was 
created on the basis of the results of the study 'Reconciliation of family and professional roles – the 
situation of young parents in the labour market' (Godzenie ról rodzinnych i zawodowych – sytuacja młodych 
rodziców na rynku pracy), conducted from September to November 2014, commissioned by the 
Ombudsman.  

158  Report of the Commissioner for Human Rights ‘Godzenie ról rodzinnych i zawodowych. Równe traktowanie 
rodziców na rynku pracy. Analiza i zalecenia’ (Reconciling of family and professional roles. Equal treatment 
of parents in the labour market. Analysis and recommendations) issued in the series: Principles of equal 
treatment. Law and Practice No. 18, Bulletin of the Ombudsman 2015, No. 7.  

159  Report of the Commissioner for Human Rights ‘Godzenie ról rodzinnych i zawodowych. Równe traktowanie 

rodziców na rynku pracy. Analiza i zalecenia’ (Reconciliation of family and professional roles. Equal 
treatment of parents in the labour market. Analysis and recommendations) issued in the series: Principles 
of equal treatment. Law and Practice No. 18, Bulletin of the Ombudsman 2015, No. 7.  

160  For example, in the research it has been criticised that the legal system makes the granting of parenting 

rights to the father dependent on whether the child's mother is entitled to them. Thus, the father is not 
entitled to paid parental leave if the child's mother does not have an employment relationship or is not 
covered by social insurance in case of illness and maternity, According to the Commissioner, such a 
situation constituted an example of discrimination on the grounds of sex, because women – mothers 
remaining in employment or covered by insurance – acquire full parental rights regardless of the 
professional situation of the child's father. This legal situation has changed since 2016.  

56 

 
 
 
• 

• 

• 

• 

• 

Constant  monitoring  of  trends  in  the  labour  market  from  the  gender  perspective, 
which  will  enable  the  construction  of  appropriate  tools  (programmes,  legal 
regulations) aimed at eliminating the discriminatory treatment of women or men. 
Increasing  efforts  to  eliminate  the  phenomenon  of  the  wage  gap,  inter  alias,  by 
introduction to labour law of the obligation of transparency of remuneration, as well 
as  effective  implementation  of  the  European  Commission's  recommendation  of  7 
March 2014 on strengthening the principle of equal pay for women and men through 
transparency,  indicating  measures  to  increase  the  transparency  of  remuneration, 
such as: providing employees with information on wages, submission by companies 
of appropriate reports, audits of remuneration in large companies and inclusion of 
the issue of equal pay in collective agreements. 
Amending  the  legal  framework  for  parental  benefits  so  that  instruments  for 
reconciling family and professional roles are targeted on equal terms at women and 
men, in particular to construct parental leave (urlop rodzicielski) in such a way that 
a  substantial  part  of  it  is  reserved  for  each  parent  without  the  possibility  of 
renouncing it to the other parent. 
Increasing the availability of childcare institutions and disseminating knowledge on 
various  forms  of  childcare  and  possibilities  of  obtaining  support  for  their  use, 
including promotion of good practices of parents' self-organisation.  
Introduction of comprehensive legal regulations enabling employers and employees 
to take advantage of flexible solutions in the scope of professional work organisation, 
extending  the  employer's  information  on  those  obligations  and  strengthening  the 
position of the employees who apply for the possibility of using flexible solutions.161  

In  2020  there  were  no  new  significant  surveys  or  reports  published  on  the  practical 
difficulties linked to work-life balance  

5.1.2  Other issues 

There are no other issues except those raised above.  

5.1.3  Overview of national acts on work-life balance issues 

In Poland, there is no special legal act devoted to the problem of work/family-life balance. 
Special rights that can be applied in this area are provided for in the Labour Code, where 
there is a whole section (8) concerning the rights of employees related to parenthood.  

In this section, the regulations from 1751 to 189 contain provisions protecting the health 
of  pregnant  workers  and  nursing  mothers,  special  rights  of  women  and  both  parents 
related  to  parenthood  (rules  for  granting  maternity,  paternity,  parental  leave,  child  or 
family care leave, rules for sharing such leave between the mother and the father of the 
child, and the possibility of combining some of these periods of leave with part-time work). 
This chapter also contains provisions guaranteeing specific protection of the employment 
relationship  of  pregnant  women  and  parents  in  the  case  of  taking  leave  related  to  the 
birth, adoption and upbringing of a child, as well as the prohibition of worsening working 
conditions in such a situation. Breastfeeding breaks are also referred to. 

General provisions for the various forms of flexible working time are set out in Section 6 
of  the  Labour  Code,  but  the  specific  rules  for  granting  some  of  these  forms  of  flexible 
working time apply only to parents of children with disabilities.  

Maternity and parental benefits are regulated by the Maternity Financial Benefits Act. 

161  Report of the Commissioner for Human Rights ‘Godzenie ról rodzinnych i zawodowych. Równe traktowanie 

rodziców na rynku pracy. Analiza i zalecenia’ (Reconciliation of family and professional roles. Equal 
treatment of parents in the labour market. Analysis and recommendations) issued in the series: Principles 
of equal treatment. Law and Practice No. 18, Bulletin of the Ombudsman 2015, No. 7.  

57 

 
 
 
 
 
 
 
 
 
 
 
5.1.4  Political and societal debate and pending legislative proposals 

Various  aspects  of  pro-family  policy  have  been  the  subject  of  constant  public  debate  in 
Poland  in  the  last  four  years.  However,  it  is  dominated  by  the  issue  of  improving  the 
economic  situation  of  families  and  extending  financial  incentives  to  have  children.  The 
issue of fair distribution of family responsibilities, if at all reflected in the activities of the 
government, is rather limited to the sphere of declarations than to taking concrete actions. 
This situation should not be surprising since the ruling party attaches great importance to 
the maintaining of the traditional family model based on stereotypical perception of social 
roles of women and men, and treats the proposals of pro-equality education of society as 
a harmful invention of the so-called gender ideology. The Commissioner for Human Rights 
is the only public body that seeks to enforce the previous government's obligations under 
the  National  Equal  Opportunities  Programme.  For  example,  on  14  August  2017,  the 
Commissioner asked the Minister of Labour, Social Policy and Family about the progress 
of work on amending the Labour Code in relation to issues related to the reconciliation of 
family life with professional work. In the letter of  9 March 2018, no specific information 
was received in response, other than assurances that the work was ongoing.162 

5.2  Pregnancy and maternity protection 

5.2.1  Definition in national law 

In Polish Labour law there is no legal definition of the notion of pregnant women, a worker 
who has recently given birth and a worker who is breastfeeding. The LC only requires the 
condition of pregnancy to be confirmed by a medical certificate (Article 185 LC).  

5.2.2  Obligation to inform employer 

The  law  does  not  put  on  women  the  obligation  to  inform  the  employer  about  the 
pregnancy. However, it is understood that the beginning of the period of protection against 
dismissal is the existence of pregnancy. It is irrelevant whether the employee was aware 
of the employee’s condition and whether she notified the employer about this fact.163  

Some  commentaries  on  the  Labour  Code  include  the  opinion  that  it  is  the  duty  of 
employees  to  immediately  inform  the  employer  about  the  state  of  pregnancy,  as  the 
unborn child is also a subject of protection.164 The author of the same commentary states 
that the employee should also inform the employer about the end of breastfeeding. It is 
even  stressed  that  this  is  a  fundamental  obligation  of  the  employee,  whose  failure  to 
observe means the risk of termination of the employment contract. This, however, is only 
an isolated opinion, as the regulations do not provide any unfavourable consequences for 
the employee for not disclosing such information.  

In  relation  to  Article  185  of  the  Labour  Code,  which  requires  that  the  condition  of 
pregnancy  should  be  confirmed  by  a  medical  certificate,  the  Supreme  Court  in  the 
judgment  of  9  September  1977  (I  PRN  115/77)  explained  that  this  certificate  does  not 
have  to  meet  any  specific  formal  requirements,  as  long  as  it  is  issued  by  a  doctor  and 
confirms  the  fact  that  the  employee  is  pregnant  (and,  if  necessary,  the  duration  of  the 
pregnancy). This provision further states that  an employer is  obliged  to grant pregnant 
workers time off work for prescribed medical examinations in connection with pregnancy 
if  such  examinations  cannot  be  carried  out  outside  working  hours.  The  content  of  this 
provision corresponds to that of Article 9 of Directive 92/85/EEC. However, it is generally 
accepted in the literature that in the event of a visible pregnancy, the right of women to 

162  https://www.rpo.gov.pl/pl/content/godzenie-rol-rodzinnych-i-zawodowych-czy-te-kwestie-znalazly-sie-w-

przygotowywanych-przepisach.  

163  See: The Supreme Court in its ruling of 15 January 1988, I PRN 74/78. 
164  Sobczyk, A. (in) Kodeks pracy. Komentarz (Labour Code. Commentary). Ed. Sobczyk, A., 2nd edition C.H. 

Beck, Warszawa 2015 p. 727. 

58 

 
 
 
 
 
 
 
 
 
 
protection  of  their  health,  whether  or  not  they  have  submitted  a  certificate,  must 
nevertheless be respected.165 

5.2.3  Case law on the definition of a pregnant worker, a worker who has recently given 

birth and/or a worker who is breastfeeding 

No case law on the definition of a pregnant worker, a worker who has recently given birth 
and/or a worker who is breastfeeding could be found. 

5.2.4  Implementation of protective measures (Articles 4-6 of Directive 92/85) 

The  protective  measures  for  pregnant  and  breastfeeding  employees  are  provided,  as 
already mentioned, in special Section 8 of the Labour Code titled: Employee rights related 
to parenthood. In particular, Articles 176, 178, 1781, 179 of the LC refer to them.  

According  to  Article  176  LC,  as  amended  by  the  Law  of  22  June  2016,166  pregnant  and 
breastfeeding  women  are  not  allowed  to  perform  work  that  is  arduous,  dangerous  or 
harmful to the health, or which may have harmful influence for the course of pregnancy 
or breastfeeding. The amended provision of Article 176 LC in Paragraph 2 includes a legal 
delegation for the Council of Ministers to issue an Ordinance, specifying which jobs are to 
be encompassed by the prohibition, with specific instructions in this regard.  

In  light  of  the  appendix  to  the  above-mentioned  Regulation,167  work  that  is  particularly 
arduous,  dangerous  or  harmful  to  pregnant  and  breastfeeding  women  includes  work 
involving  a  physical  effort,  performed  in  cold,  hot  or  changing  microclimates,  involving 
noise and vibrations, involving exposure to electromagnetic waves, ionising and ultraviolet 
radiation,  as  well  as  all  work  in  environments  involving  higher  or  lower  pressure,  for 
instance,  working  as  a  diver.  Also  forbidden  is  any  work  involving  contact  with  harmful 
biological substances (e.g. involving dangerous substances containing B-type hepatitis and 
HIV), and work involving exposure to harmful chemical substances. The prohibition  also 
includes  work  involving  a  risk  of  serious  physical  or  mental  injuries,  for  instance,  work 
performed underground and at a height.  

Irrespective  of  this  prohibition,  the  employer  must  change  the  working  conditions  of  a 
pregnant or breastfeeding employee in the event that there are health contraindications, 
stated  in  the  medical  certificate,  to  perform  previously  performed  work  (Article 179(1) 
LC).  Employers  are  also  obliged  to  respectively  modify  the  working-time  patterns  of 
pregnant and breastfeeding women and/or to assign them to another position. If such a 
transfer is impossible  or inadvisable, the woman in question  shall be  released  from her 
obligation  to  perform  work  (Articles  1781  and  179(1)  LC)  while  retaining  full  pay 
(Article 179(5)  LC).  If  her  remuneration  is  reduced  following  the  adaptation  of  working 
conditions in her current position, or following the reduction of working time or the transfer 
to another position, the pregnant woman is entitled to compensatory pay (Article 179(4) 
LC).  When  the  reasons  for  the  above  actions  have  ceased  to  exist,  the  employer  shall 
employ this employee in accordance with the contract of employment as regards the type 
of work and working time (Articles 1781 and 179(6) LC).  

165  Sobczyk, A. (in) Kodeks pracy. Komentarz (Labour Code. Commentary). Ed. Sobczyk, A., 2nd edition C.H. 

Beck, Warszawa 2015 p. 779.  

166  This law which entered into force on 3 August 2016 amended the Labour Code and some other laws (JoL of 

19 June 2016 Item 1053). Until 3 August 2016 the LC did not generally permit women to be employed for 
performing work listed (Article 176 LC). A list of such work has been determined in the Ordinance of the 
Council of Ministers of 10 September 1996, JoL 1996 No. 114, Items 544 and 545. The idea alone of a 
general exclusion of the possibility to employ women for particular work, irrespective of their health and 
physical condition, was considered obviously discriminatory.  

167  Regulation of the Council of Ministers of 3 April 2017 on the register of work that is strenuous, dangerous 

or detrimental to the health of pregnant and breastfeeding women (JoL of 2017 Item 796).  

59 

 
 
 
 
 
 
 
 
 
 
The ban on employing pregnant women and women who are breastfeeding for prohibited 
work is absolute, which means that the employer is forbidden to employ them even with 
their  consent.  An  employer  who  does  not  comply  with  the  prohibition  on  employing 
pregnant  women  in  prohibited  job  may  be  held  liable  for  contravention  (wykroczenie) 
under Article 281(5) of the LC. Hence the prohibition of employment of pregnant women 
and nursing mothers in the jobs specified on the list goes beyond the standard provided 
for in Article 4 of Directive 92/85/EEC.  

5.2.5  Case law on issues addressed in Articles 4 and 5 of Directive 92/85 

Case law under these provisions mainly concerned issues such as the obligation to inform 
the employer when taking up employment of the fact of being pregnant or breastfeeding 
and the validity of the terms of the contract.  

The first issue was addressed, inter alia, by the Supreme Court in its judgment of 17 April 
2007  (I  UK  324/06),  ruling  that  a  worker  who  takes  up  employment  is  not  required  to 
disclose the fact that she is pregnant if the work she intends to do is not prohibited because 
of maternity protection.  

The  case  was  pending  as  a  result  of  an  appeal  filed  by  Joanna  K.  against  the  Social 
Insurance Institution (ZUS) branch in Łódź. On 27 February 2003, the claimant concluded 
an  employment  contract  for  an  indefinite  period  of  time  on  a  full-time  basis  with  the 
employer  pursuant  to  which,  as  of  1  March  2003,  she  was  to  work  as  a  sales 
representative. When concluding the contract, the applicant was pregnant, which she did 
not inform the employer about. One week after taking up employment, until the day of 
childbirth, the claimant was on sick leave. By decision of 17 September 2003 the Social 
Insurance Institution (ZUS) established that claimant was not subject to social insurance, 
since, in the view of this authority, the contract was concluded solely for the purpose of 
receiving social insurance benefits. The Court of Second Instance did not agree with this 
position. The Supreme Court shared the position of the Court of Second Instance, claiming 
that  the  conclusion  of  an  employment  contract  by  the  petitioners  was  not  intended  to 
circumvent the law causing the invalidity of this act, as it does not constitute circumvention 
of the law to perform an action in order to achieve the effects of the Law on the system of 
Social  Insurance.  The  Supreme  Court  indicated  that  it  should  be  recognised  that  in  a 
situation  where  the  will  of  the  parties  concluding  an  employment  contract  was  to  enter 
into an employment relationship and the actual performance of paid work took place, the 
mere  awareness  of  one  of  the  parties  to  the  contract,  or  even  of  both  parties  to  the 
contract, as to the occurrence of an event giving entitlement to social security benefits in 
the future (e.g. the birth of a child by an  employee) does not give grounds to consider 
that the contract was intended to circumvent the law. 

The Supreme Court additionally expressed in this ruling the opinion that, on an exceptional 
basis, an  employee  should, during the recruitment process, inform the  employer  of her 
pregnancy  when  she  applies  for  employment  in  jobs  prohibited  for  pregnant  women. 
Although this view is usually accepted by scholars it is also rightly criticised 168 as leading 
to  unequal  treatment  of  women  who  apply  for  jobs.  The  common  opinion  is  that  the 
contract of prohibited employment remains valid (since there are no provisions providing 
for nullity).169  

There were also interesting rulings on the amount of benefits in the case of  the transfer 
of  an  employee  to  another  job  due  to  pregnancy.  In  the  judgment  of  5  May  1976 
(I PRN 32/76), the Supreme Court ruled that when a worker is transferred to another job 
for health reasons because of pregnancy, the reduced productivity in the new job cannot 
adversely affect the amount of the compensatory allowance due to her, as provided for in 

168  See: Sobczyk, A. (in) Kodeks pracy. Komentarz (Labour Code. Commentary). Ed. Sobczyk, A., 2nd edition 

C.H. Beck, Warszawa 2015, p. 719. 

169  Wratny, J., Kodeks pracy. Komentarz (Labour Code. Commentary). C.H. Beck, Warszawa 2003, p. 405. 

60 

 
 
 
 
 
 
 
 
Article 179(2)  of  the  Labour  Code.  The  failure  of  a  pregnant  worker  to  comply  with  the 
standard of work laid down for a new post must be assessed in light of the necessary legal 
protection  afforded  to  pregnant  workers  by  the  relevant  legislation  in  force.  These, 
however,  are  primarily  aimed  at  safeguarding  the  social  interest  by  guaranteeing  the 
mother's health conditions and the child's development.  However, the issue  of securing 
the necessary discipline at work is a separate matter. In this respect, the manager of the 
workplace is entitled to appropriate measures in order to enforce the obligations incumbent 
on the employee.  

5.2.6  Prohibition of night work 

Article  178(1)  LC  states  that  a  pregnant  woman  is  prohibited  from  performing  any 
overtime  or  night  work.  This  provision  has  an  absolute  character,  which  means  that  a 
pregnant woman cannot perform night work regardless of whether such work poses any 
risk  to  her  health  or  not,  or  whether  there  is  any  objective  reason  why  she  should  not 
perform  night  work.  It  is  also  important  that  the  consent  of  the  pregnant  employee 
remains irrelevant.  

Pregnant women also cannot be posted to work outside of their permanent workplace or 
be employed under the shift work system, however, only without their prior consent. The 
work  split-up  system  provided  for  in  Article  139  LC  refers  to  workdays  scheduled  with 
interruption (Article 178(1) in fine LC). This relative prohibition also applies to a worker 
caring for a child up to the age of four. In addition, such an employee may not be employed 
overtime without his or her consent (Article 178(2) LC).170  

According  to  the  provision  of  Article  1781  LC,171  the  employer  employing  an  employee 
during  the  night  time  is  obliged  to  change  the  working  time  schedule  for  the  period  of 
pregnancy in such a way that it is possible to  perform work during daytime, and if it is 
impossible  or  unreasonable,  transfer  the  employee  to  another  job,  the  performance  of 
which does not require night work. Although the LC in  Article 1781 does not provide for 
any requirement as to the new work, it is assumed that this other work should correspond 
to the qualifications of the employee, and the temporary position cannot be significantly 
lower in the hierarchy.172 In cases of a lack of such opportunities, the employer is obliged 
to release the employee for the necessary period of time from the obligation to perform 
the work. Where a change in the terms and conditions of the previous job, a reduction in 
working  hours  or  the  transfer  of  an  employee  to  another  job  results  in  a  reduction  in 
remuneration  of  the  pregnant  or  breastfeeding  woman,  she  shall  be  entitled  to  a 
compensatory  allowance  (Article  179(4)  LC).  During  the  period  of  release  from  the 
obligation to perform work, an employee retains  the right to the previous remuneration 
(Article  179(5)  LC).  Workers  who  have  changed  their  working  hours  or  who  have  been 
made  redundant  shall  have  the  right  to  return  to  their  previous  job  after  the  reasons 
justifying the change have ceased (Article 179(6) LC). 

The administrative liability provided for in Article 281(5) of the Labour Code applies, inter 
alia,  to  an  employer  who  infringes  the  provisions  on  working  time,  e.g.  by  employing 
pregnant women at night. Since the prohibition of night work for pregnant women provided 
for in Article 178 is absolute, the  Polish law  therefore provides  such  workers  with more 
far-reaching  protection  than  that  provided  for  in  the  minimum  standard  provided  in 
Article 7 of Directive 92/85/EEC. 

The  absolute  prohibition  of  night  work  provided  for  in  Article  178  shall  not  apply  to  a 
woman who is breastfeeding her child. Paragraph 2 of  Article 178, which requires, inter 

170  Although the law in this provision does not explicitly mention breastfeeding mothers, the prohibition for an 

employee caring for a child up to the age of four years applies to such women. 

171  The provision has been added by the Act of 14 November 2003, JoL 2003 No. 213 Item 2081.  
172  Sobczyk, A. (in) Kodeks pracy. Komentarz. (Labour Code. Commentary) ed. Sobczyk, A., 2nd edition. C.H. 

Beck, Warszawa 2015, p. 723.  

61 

 
 
 
 
 
 
 
 
alia,  the  consent  of  the  carer  for  night  work,  shall  apply  to  such  persons  during  the 
childcare period up to the age of four years. The requirement to obtain consent also applies 
to overtime work and work outside the regular workplace.  

Consequently,  although  the  prohibition  on  night  work  laid  down  in  Article  178  does  not 
cover nursing mothers, it must be considered that the Polish legislation provides sufficient 
protection for such women, especially since the refusal to employ such a worker during 
night time does not necessarily have to be based on medical prescriptions to perform such 
interpretation  of  Article  7  of 
work  (which  seems  to  be  suggested  by  the 
Directive 92/85/EEC in conjunction with Article 19 of Directive 2006/54/EC, carried out in 
the judgment of the CJEU of 19 September 2018, No. C-41/17).173 

5.2.7  Case law on the prohibition of night work 

In  its  judgment  of  16  February  2018,  the  Court  of  Appeal  in  Łódź  (III  AUa  123/17) 
confirmed  the  absolute  nature  of  the  prohibition  on  employing  pregnant  women  during 
night-time  provided  for  in  Article  178  of  the  Labour  Code,  arguing,  inter  alia,  that  the 
consent of the employee concerned to perform night work does not repeal that prohibition. 
Night work is deemed not to comply with the biological rhythm of the human body and 
may cause adverse effects on the health of pregnant women.  

Already  in  earlier  case  law  (the  resolution  of  the  Supreme  Court  of  15  March  1979 
(V PZP 13/78)) – there was a settled view that the transfer of a pregnant employee from 
a four-team work organisation to a single-shift job due to the statutory ban on overtime 
and night work (Article 178(1) of the Labour Code), as a transfer to another job within the 
meaning of Article 179(1) of the Labour Code, justifies, on the basis of Article 179(2) of 
the Labour Code, the payment of a compensatory allowance in the event of a reduction in 
the  employee's  remuneration,  even  if  the  type  of  work  performed  by  the  employee 
remained unchanged.  

In  its  resolution  of  28  April  1994  (I  PZP  6/94),  the  Supreme  Court  ruled  that  a  female 
doctor  is  entitled  to  the  compensatory  allowance  provided  for  in  Article  179(2)  of  the 
Labour Code if she was previously on on-call duty at the company for which she received 
additional remuneration and is unable to do so because of her pregnancy. 

5.2.8  Prohibition of dismissal 

Dismissal is prohibited from the beginning of the pregnancy until the end of the maternity 
leave,174 with two exceptions: 1) fault of the employee 2) liquidation of employer.175 As 
for the first case, Article 177(1) of the LC states that an employer may not terminate a 
contract of employment with a female employee who is pregnant, or on maternity leave, 
unless there are grounds for contract termination without notice through the fault of the 
employee, and provided that the trade union representing this employee has consented 
thereto (Article 177(1)LC).176 First, such consent repeals the ban on dismissing pregnant 
workers and workers during maternity leave. Secondly, if there is no trade union in the 
company  or  if  the  employee  is  not  represented  by  any  trade  union,  the  employer  is 

173  Judgment of the Court (Fifth Chamber). Isabel González Castro v Mutua Umivale and Others, 

ECLI:EU:C:2018:736. 

174  It is worth noting that this footnote does not refer to a woman breastfeeding her child. The fact is that the 
dismissal ban on maternity leave will partially protect her from dismissal. Sometimes, however, women 
breastfeed their children longer than the duration of maternity leave, or women give up part of the leave in 
favour of the child's father. In such a situation, it is doubtful whether this provision will provide her with 
sufficient protection. 

175  The first concerns termination of employment contract without notice (i.e. immediate termination), the 

second concerns termination of employment contract with notice. 

176  In the opinion of the Supreme Court, it is irrelevant for the protection of pregnant women from dismissal 
whether the employee was aware of her pregnancy, the employer had been informed about this fact, or 
that the pregnancy was terminated by miscarriage. The only thing that matters is the objective existence of 
pregnancy at the moment of dismissal. 

62 

 
 
 
 
 
 
 
 
 
exempted  from  the  obligation  to  obtain  any  consent.  Such  a  solution  seems  to  be  in 
accordance  with  Article  10(1)  of  Directive  92/85/EEC,  which,  although  making  the 
possibility of dismissal conditional on the consent of the competent authority, stipulates 
that consent is required only 'where applicable'. According to the judgment of the Supreme 
Court of 3 June 1998 (I PKN 164/98), the consent of a trade union organisation may be 
given ex post, i.e. after dismissal of an employee, but only in the event when the employer 
and  the  management  board  of  the  trade  union  organisation  do  not  know  about  the 
pregnancy  of  the  dismissed  employee,  because  the  employee  did  not  submit  a  medical 
certificate  (referred  to  in  Article 185(1)  LC).  As  regards  the  second  exception  to  the 
prohibition  in  question,  the  Labour  Code  in  Article  177(4)  states  that  dissolution  of  an 
employment contract with notice with a pregnant woman or person (mother or father) on 
maternity leave may take place exclusively in the case of the liquidation of the employer’s 
enterprise  or  its  bankruptcy,  upon  agreement  (po  uzgodnieniu)  with  a  trade  union 
representing that employee, as to the date of the dissolution of the contract and resulting 
financial  conditions.  The  period  of  time  during  which  an  employee  will  receive  financial 
benefits in relation to such dissolution will be counted into the duration of the employment 
period that entitles an employee to the various employment benefits. In the case of this 
exception,  what  has  been  said  above  about  the  situation  of  a  worker  who  is  not 
represented by any trade union is also valid. In addition, however, it is doubtful whether, 
if  the  directive  explicitly  mentions  'consent',  only  the  requirement  of  'agreement'  is 
sufficient.  The  use  of  different  terms  in  the  legislation  ('consent’  (‘zgoda’),  ‘upon 
agreement’ (po uzgodnieniu)) should be interpreted as meaning something else, although 
a purely linguistic interpretation would allow the terms to be considered as overlapping. 
In view of this reservation, it is doubtful whether the provision in question is compatible 
with  Article  10(2)  of  the  Directive  as  regards  the  part  relating  to  the  liquidated 
establishment.  

5.2.9  Redundancy and payment during maternity leave 

If the employer goes bankrupt and the pregnant employee's contract with the employer is 
terminated  for  this  reason,  she  will  receive  Social  Security  benefits  until  the  day  of 
childbirth and after childbirth. The employer should send the documents for this purpose 
to the relevant ZUS branch office.177 

5.2.10 Employer’s obligation to substantiate a dismissal 

The employer has in every case of dismissal (with exception of employment contracts for 
a defined period of time) the obligation to substantiate the decision.  

Such a general obligation results from provision of Article 30(4) LC which stipulates that 
in a decision of the employer to terminate with notice a contract concluded for an indefinite 
period of time or to terminate an employment contract without notice, the reason justifying 
the  termination  of  the  contract  should  be  stated.  These  reasons  should  be  precise  and 
formulated in such a way that it is understandable to the employee, so that he/she himself 
is able to decide whether it is true  or not.  The decision  on the dismissal without notice 
shall be supplemented by the employer’s instructions on the right to appeal such decision 
to the employment court Article 30(5) LC.  

5.2.11 Case law on the protection against dismissal 

The  case  law  on  protection  against  dismissal  during  pregnancy  is  very  extensive.  The 
following judgments are worth noting.  

177  Cf. relevant explanation from the Social Insurance Institution (ZUS), available at: 

https://www.rp.pl/ZUS/310239946-Czy-likwidacja-zakladu-pracy-pozbawia-ciezarna-swiadczen.html. 

63 

 
 
 
 
 
 
 
 
 
 
In the ruling of 2 June 1995 (I PRN 23/95) the Supreme Court noted that the time in which 
a woman informed her employer about the pregnancy is not relevant for the protection 
against  dismissal  with  or  without  notice.  Significant  only  is  the  objective  existence  of 
pregnancy  at  the  time  of  dismissal  or  notice  (ruling  of  the  SC  of  15  January  1988, 
I PRN 74/87). The employee’s failure to inform the employer about the pregnancy before 
the date of termination of the employment contract is only relevant to the recognition of 
the employee’s claim for remuneration for the period during which the employee remained 
unemployed.178  

The employer is obliged to immediately withdraw the notice of termination of employment 
if  it  learns  that  an  employee  became  pregnant,  during  the  course  of  the  notice  period, 
which  was  confirmed  by  an  appropriate  medical  certificate  (Article  177  Section  1  in 
conjunction with Article 185 Section 1 of the Labour Code). In the event of  a breach of 
this  obligation,  the  lack  of  clear  statement  of  the  employer  on  the  withdrawal  of  notice 
may  justify  the  reinstatement  of  the  deadline  for  bringing  an  appeal  against  the 
termination  of  the  employment  contract  (Article  265  Section  1  in  conjunction  with 
Article 264 Section 1 of the Labour Code).179 The ruling of the Supreme Court of 28 March 
2017 (II PK 17/16) shows that in the case of a pregnant employee, the court is, as a rule, 
bound by her demand for reinstatement and should award remuneration for the time of 
being unemployed. 

However,  there  are  other  rulings  which  indicate  that  in  exceptional  cases  maternity 
protection should give way to the employer's organisational need manifested in liquidation 
of the workplace (ref. judgment of the Supreme Court dated 5 May 2016, II PK 65/15). In 
another judgment of the Supreme Court concerning the immediate dismissal of a pregnant 
employee  due  to  the  fault  of  the  employee,  the  Supreme  Court  stated  that  the  Labour 
Court may decide on compensation instead of a claim for reinstatement of an employee 
subjected  to  special  protection  of  the  employment  relationship,  if  the  claim  for 
reinstatement by such employee may be classified in a specific situation as an abuse of 
rights (Article 8 of the Labour Code) (ref. judgment of the Supreme Court of 24 June 2015, 
II  PK  180/14).  The  Supreme  Court  has  also  stressed  that  the  ban  on  termination  of 
employment contracts likewise applies in the event that an employee becomes pregnant 
during  the  notice  period,  even  if  after  the  notice  period  she  underwent  an  abortion 
procedure (resolution of the SC of 14 April 1972, III PZP 7/72 and resolution of the SC of 
13 September 1979 (I PRN 284/79)).180  

In its judgment of 8 July 2008 (I PK 294/07) the Supreme Court confirmed the protection 
of the employment relationship also for women who have had a miscarriage by ruling that 
acceptance of the position that the absence from work of a female employee due to the 
risk  of  pregnancy  and  subsequent  miscarriage  and  the  health  complications  associated 
with it may constitute an excusable reason for the termination of her employment contract 
and  justify  the  refusal  to  reinstate  her  on  the  grounds  that  she  is  not  fit  for  purpose, 
constitutes a breach  of  the principles relating to maternity protection  and may  even be 
regarded as discrimination on grounds of sex.181 

178  Pursuant to Article 47(2) of the Labour Code, employees who take up employment as a result of being 
reinstated at work, if the employment contract was terminated during pregnancy – are entitled to 
remuneration for the entire period of staying without work, starting from the moment when the employer 
was notified of the pregnancy causing the woman to be covered by special protection of the employment 
relationship. 

179  See also: ruling of the SC of 30 May 2017, I PK 174/16 and decision of the SC of 22 August 2013, II PK 

83/13. 

180  See also ruling of the SC of 16 December 1999, I PRN 468/99. 
181  The case concerns a woman, employed by the Regional Healthcare Insurance Fund, who has been on sick 

leave for 7 months... After returning to work, the respondent terminated the claimant's contract with three 
months' notice, and as the main reason for termination of the contract indicated disorganisation of work 
resulting from the frequent absence. The Regional Court stated that the termination of the claimant's 
employment contract was made in accordance with binding regulations and the reasons for the termination 
were justified. The District Court changed the judgment under appeal by ordering the respondent to pay 
the claimant compensation for unlawful termination of the employment contract. The Supreme Court, 

64 

 
 
 
 
 
 
Protection  against  dismissal  also  applies  to  an  employee  who,  not  knowing  that  she  is 
pregnant, has made a declaration of intent to terminate her employment contract. The SC 
ruled that she has the right to waive such declaration as it was made under the influence 
of an error (ruling of 11 June 2003, I PK 206/02). The jurisprudence also allows for the 
possibility of withdrawal of the declaration of will made by an employee who, in the event 
of termination of the employment contract by mutual agreement of the parties, at the time 
of  conclusion  of  the  agreement,  did  not  know  about  the  state  of  pregnancy.  Such  a 
statement is also considered to be submitted under the influence of an error, even if the 
employee  herself  was  the  initiator  of  the  dissolution  upon  agreement  (SC  ruling  of  3 
February 1993, I PZP 72/92).  

There are also several rulings related to a limited scope of protection (in the case of fault 
of the employee and liquidation or bankruptcy of the employers’ enterprise). 

With respect to the liquidation of the employer, the Supreme Court ruled that the closure 
of a branch of a foreign legal entity in Poland, being an employer within the meaning of 
Article  3  LC  does  not  constitute  the  liquidation  of  that  employer  within  the  meaning  of 
Article  41(1)  of  the  Labour  Code  and  cannot  exclude  the  protection  of  the  employment 
relationship of pregnant employees provided for in Article 177(4) of the Labour Code (SC 
ruling of 3 December 2009, II PK 147/09). 

The Supreme Court also confirmed the views expressed earlier in the literature, that the 
requirement (provided for in Article 177(1) and (4) LC) to obtain the consent (or opinion) 
of  a  trade  union  organisation,  does  not  apply  to  those  situations  when  women  are  not 
covered by trade union protection.  To take a  different approach would lead to impunity 
and  greater  protection  for  those  workers  who  have  not  designated  the  organisations 
representing them (resolution of SC of 18 March 2008, II PZP 2/08).  

Recent national case law182 proves that there are also other difficulties in understanding 
the exceptions to the prohibition of the dismissal from work of pregnant women. One of 
these cases was regarding a religion teacher at a public school who was dismissed despite 
the fact that she was pregnant, because her permit to teach religion (missio canonica) had 
not been extended.183 The diocesan bishop, responsible for the issuing of this document, 
refused to extend it when he learned that the teacher was a divorcee and lived with the 
father of her unborn child without being married. The court of first instance found that the 
school was entitled to dissolve the employment contract with the woman after the refusal 
of  the  extension  of  the  missio  canonica,  since  in  light  of  Article 23(1)  Item  6  of  the 
Teacher’s  Charter,184  such  refusal  constituted  a  lawful  basis  for  the  dissolution  of  the 
employment contract. In her appeal the teacher  claimed that the court of first instance 
had violated material law, by assuming that the case of dismissal of a pregnant religion 
teacher, whose missio canonica has not been extended, is not regulated by law. The court 
of second instance fully rejected the appeal. Although it found that in this case Article 177 
LC should be applied, it nevertheless decided that this fact would not influence the direction 
of the  ruling.  The court noted that, in the case of the  claimant, the  exception from the 
general  prohibition  provided  for  in  Article  177(1)  LC  applied,  namely  the  possibility  to 
terminate the contract if the reason for termination resulted from a fault of the employee. 

however, stated that the District Court did not take into account the fact that the state of pregnancy 
existed at the time of sick leave, whereas at the time of the Court's ruling the claimant was no longer 
pregnant, and therefore it could be assumed that there would be no further absences from work caused by 
the claimant's inability to work. The Supreme Court also pointed out that the Regional Court failed to 
determine when the claimant was pregnant, as well as when the miscarriage occurred and how these 
circumstances affected her inability to work. The Court stressed that an event such as pregnancy (which 
may turn out to be dangerous, which justifies the sick leave for its duration until the delivery) should not be 
treated as a circumstance against the employee. 

182  Case No. VII Pa 326/15, Ruling of 20 October 2016 of the Regional Court in Kraków. 
183  The requirement to hold a valid permit is regulated in Section 12(3) of the International Agreement 

between the Polish Government and the Vatican concluded in 1993 (so-called Concordat). Published: in JoL 
1998 No. 51 Item 318.  

184  Consolidated text published in: JoL 2016 Item 1379 with amendments. 

65 

 
 
 
 
 
 
The court interpreted her failure to formally obtain the  extension of her missio canonica 
as a fault of the  employee (by not lodging an  official application for an extension).  The 
court  failed  to  consider  the  circumstance,  indicated  by  the  teacher,  that  such  official 
application  was  not  required  before  and  that  she  always  obtained  her  extension  (in 
practice,  a  stamp  in  the  teacher’s  book)  automatically,  upon  her  visit  to  the  Curia. 
Exceptional in this ruling are the hypothetical considerations of the court, regarding what 
would have happened, if the teacher had submitted an official application for extension of 
the missio canonica. In the court’s opinion, in such a situation the Bishop would still be 
entitled  to  refuse  an  extension  of  the  permit  due  to  her  personal  situation,  without 
discriminating against her. The court noted that ’such behaviour of the church authorities 
lies within the exceptions set forth in Article 183b(4) LC.185 It also noted that the situation 
of the claimant was:  

‘(…) contrary to the religion of the Church which she was supposed to teach. Hence 
there was a collision between the claimant’s right to protection of pregnancy and the 
right  to  decide  upon  her  private  life  with  the  right  to  practise  religion  by  church 
authorities’.  

In the author’s opinion, the reference of the court to Article 183b(4) LC was very superficial, 
without  a  deeper  analysis  of  its  wording,  especially  by  conducting  the  obligatory 
proportionality test.  

5.3  Maternity leave 

5.3.1  Length 

The  length  of  maternity  leave  depends  on  the  number  of  children  born  from  one 
pregnancy.186  Article  180  of  the  LC  stipulates  that  a  female  employee  is  entitled  to  the 
following  periods  of  maternity  leave:  1)  20  weeks  (140  days)  when  giving  birth  to  one 
child in one birth; 2) 31 weeks (217 days) when giving birth to two children in one birth; 
3) 33 weeks (231 days) when giving birth to three children in one birth; 4) 35 weeks (245 
days) when giving birth to four children in one birth; 5) 37 weeks (259 days) when giving 
birth to five or more children in one birth.  

5.3.2  Obligatory maternity leave 

There is no obligatory period of maternity leave before the birth.  

Until 2009, the LC included the recommendation that  two weeks of the leave should be 
taken  before  the  childbirth.  However,  due  to  the  fact  that  this  provision  was  generally 
ignored, it has been abolished.  

Currently Article 180(2) of the LC provides that no more than six weeks of maternity leave 
may be used prior to the expected date of childbirth.  

185  This provision states that ‘The principle of equal treatment is not violated where churches and other 

religious societies, as well as organisations the ethics of which are based on religion, belief or world view, 
deter access to employment on the grounds of religion, belief or world view provided the type or 
characteristics of the activity conducted by the churches and other religious societies, as well as 
organisations, causes that the religion, belief or world view are a real and decisive occupational 
requirement for the employee, proportional to reaching a lawful aim of the differentiation of the situation of 
such a person; it also concerns the requirement for the employed person to act in good faith and loyalty 
towards the ethics of the church, other religious society and organisation the ethics of which are based on 
religion, belief or world view.’ 

186  Maternity leave shall not be granted in the event of a miscarriage. In the case of stillbirth (or death of a 

child before the end of the 8th week of life) the mother is entitled to a period of 8 weeks of maternity leave 
(not less than 7 days from the day of the child's death). 

66 

 
 
 
 
 
 
 
 
 
 
 
 
It  applies  also  to  an  insured  woman  who  gives  birth  to  a  child  while  she  is  taking  the 
unpaid childcare leave for children born earlier (cf. the judgment of the Court of Appeal of 
Katowice of 11 January 2012, III AUA 954/11).  

The maternity leave must last at least 14 weeks after the birth (Article 180(4)).187 After 
this period, the woman may resign from the remaining part of the leave in favour of the 
insured father188 of the child. The compulsory period of maternity leave is only eight weeks 
if the female worker has a certificate of incapacity for self-support (Article 180(6)) or is in 
hospital because of a medical condition that prevents her from  personally taking care of 
her child (Article 180(10)).  

5.3.3  Legal protection of employment rights (Articles 5, 6 and 7 of Directive 92/85)  

The  protection  of  employment  rights  derives  from  Articles  45(3),  56  and  67(2)  and 
Articles 243-265  of  the  LC.  In  such  cases,  general  rules  for  resolving  disputes  deriving 
from employment agreements apply, with some modifications. These general provisions 
stipulate that disputes over claims arising from an employment relationship shall be settled 
by labour courts, which form separate organisational pillars of district courts (Article 262 
LC).  According  to  Articles  44  and  45(3),  as  well  as  Articles  56  and  67(2)  of  the  LC, 
dissolution or termination of the employment agreement during pregnancy and maternity 
leave, which contradicts the rules defined in Article 177 of the LC, is not absolutely invalid 
de jure, but becomes relatively invalid. This means that only after a judgment from the 
Labour  Court  declaring  the  dissolution  of  an  unlawful  labour  contract  can  the  employee 
return to work. If, therefore, a respective claim is not lodged by the employee within the 
specified period, the dissolution of employment contract will be valid. It should be noted 
that if the court finds the dissolution to violate the provisions on the protection of women 
during pregnancy and maternity leave, upon her bringing a claim, it is obliged to declare 
the dissolution invalid and, if the contract has already been terminated, it has to reinstate 
her to work on the previous conditions. Awarding damages instead of reinstitution to work 
is allowed only when the latter is not possible due to reasons listed explicitly in the law, 
namely in the case of the employer’s bankruptcy or liquidation (Article 411 LC), i.e. when 
the provisions about protection of employees during pregnancy and on maternity leave do 
not apply. With regard to other employees, awarding damages instead of reinstitution to 
work (if postulated by the employee) is possible in cases when reinstitution is impossible, 
but in such cases the decision as to whether one of these conditions applies remains within 
the discretionary power of the court. 

5.3.4  Legal protection of rights ensuing from the employment contract  

There  are  no  single  legal  provisions  that  would  explicitly  ensure  employment  rights 
resulting from an employment contract during pregnancy and maternity leave.  

However, Article 179(4-6) of the LC guarantees, for example, that if the woman during 
her pregnancy is transferred to another job or her work hours are limited, or even when 
she is released from performing the work, she should receive the same pay as stated in 
her employment contract. She will be reinstalled at the previous workplace as soon as the 
reasons for a change of employment cease to exist or, if this is not possible, she will be 
employed  in  another  position  corresponding  to  her  professional  qualifications  for 
remuneration for her work which she would have received if she had not taken maternity 
leave (Article 183(2) LC). Article 184 LC provides that for the period of maternity leave, 
an employee is entitled to a maternity allowance under the rules set forth in the Act of 25 
June 1999 on pecuniary benefits from social insurance in cases of sickness and maternity 
leave. 

187  If a woman is unable to care for her child (due to the state of health or abandonment of the child), the 

obligatory period of maternity leave is 8 weeks (Article 180(6) and (10) and Article 182 LC). 

188  If the father is not an employee but insured as self-employed, he must interrupt the economic activity for 

personal childcare purposes. 

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5.3.5  Level of pay or allowance  

The allowances during pregnancy and maternity leave are higher than ‘standard’ sickness 
allowances. The maternity allowances and sickness allowances during pregnancy amount 
to  100 %  of  the  base  for  calculating  the  benefit189  (Articles  31  and  11  of  the  Law  on 
Maternity Benefits).190 The ‘standard’ sickness benefits amount to only 80 % of the above 
base. There is no upper limit of those benefits in Polish law. 

5.3.6  Additional statutory maternity benefits  

The  so-called  Family  500  plus  benefit  may  be  considered  as  an  additional  statutory 
maternity (child) benefit. This is granted monthly in the amount  of  PLN 500 (EUR 109) 
pursuant to the Act of 11 February 2016 on State aid in bringing up children191 from the 
moment of birth of the child until his/her 18th birthday. The Family 500 plus benefit was 
previously paid for the second and subsequent children (and exceptionally in the case of 
poorer  families  also  for  1  child),  regardless  of  whether  the  family  is  insured  and  what 
financial situation it is currently in. Starting from 1 June 2019, this supplement is due for 
each child, regardless of the financial situation of the family.  

In  addition,  parents  whose  net  monthly  income  per  capita  does  not  exceed  PLN 1 922 
(EUR 418) are entitled to the so-called becikowe payment, that is, a one-time birth grant 
of  PLN 1 000  (EUR 218)  per  one  living  child  (Article  15b(1)  of  the  Law  on  Family 
Benefits).192  

5.3.7  Conditions for eligibility (Article 11(4) of Directive 92/85) 

The conditions of eligibility for benefits related to sickness and maternity are provided for 
in Articles 4 and 29 of the Law on Maternity Benefits. The basic condition to benefit from 
maternity  allowance  is  to  have  (compulsory  or  voluntary)  so-called  sickness  insurance 
(which also covers maternity).193  

The  conditions  for  eligibility  for  maternity  benefits  differ  from  those  related  to  sickness 
benefits.  According  to  Article  29  of  the  above-mentioned  Law,  the  only  condition  for 
receiving maternity benefits, both by a person employed under an employment contract 
and by a self-employed person, is the existence of valid sickness insurance in the meaning 
of the Law of 13 October 1998 on the System of Social Security. Since 1 January 2016,194 
new  provisions  regarding  self-employed  persons  are  applied,  according  to  which  the 
amount of maternity benefits while conducting commercial activity depends on the period 
of  paying  contribution  fees  and  on  their  amount.  Pursuant  to  the  amended  regulations, 
persons starting business activity or joining the voluntary sickness insurance are entitled 
to the benefit in the basic amount. If, however, they want to receive a higher sickness or 
maternity benefit, they are entitled to only 1/12 of the increase for each month of paying 
higher  contributions.  Hence,  in  order  to  qualify  for  the  maximum  benefit,  the  insured 
persons must pay at least 12 high contributions (Articles 48 and 48a of the Benefit Act). 
This change of the law, considered to be discriminatory for self-employed women (since 

189  Pursuant to Article 36 of above-mentioned Law, this base constitutes the average salary of the last 12 

months. 

190  In addition, if the sickness occurred during pregnancy the allowance is paid for longer (‘normally’ max. 182 

days, during pregnancy max. 270 days). 

191  Act of 11 February 2016 on State aid in bringing up children. JoL of 2016 Item 195.  
192  If more than one child (alive) is born during a single birth, the subsidy is paid for each of these children. 

Besides confirmation of low income, the child’s mother should provide a certificate from a doctor or midwife 
informing about the fact that she was under the care of a doctor no later than from the 10th week of 
pregnancy until the day of childbirth. 

193  Such insurance does not apply to persons receiving unemployment benefit, as well as persons receiving 

scholarships. 

194  The entering into force of these amendments has been postponed because of protests of self-employed 
mothers. Available at: https://lawsolutions.eu/swiadczenie-rodzicielskie-a-zasilek-macierzynski-dla-
przedsiebiorczych-matek/. 

68 

 
 
 
 
 
 
 
 
 
employees still receive maternity benefits according to their actual average salary), was 
introduced by the Law of 15 May 2015 on the amendment of the Law on Maternity Benefits 
and some other laws. 

As  regards  sickness  benefits,  if  the  worker  is  subject  to  obligatory  insurance  (as  is  the 
case  with  employees  on  an  employment  contract),  then  the  required  insurance  period 
amounts to 30 days of uninterrupted sickness insurance (which does not have to be with 
the same employer). If the worker is insured on a voluntary basis (as e.g. self-employed 
persons),  the  minimum  insurance  period  amounts  to  90  days  (Article  4  of  the  Law  on 
Maternity Benefits). 

The special provision concerning taking up employment by an uninsured mother is worth 
noting.  A  mother  who  is  not  an  employee  on  the  day  of  childbirth  is  not  entitled  to 
maternity  leave.  If  she  is  not  covered  by  social  insurance  in  the  event  of  sickness  or 
maternity,  she  is  not  entitled  to  a  maternity  allowance,  either.  However,  if  the  mother 
takes up not less than half of the full-time employment, the right to maternity leave shall 
be vested in the father employee raising the child. This right shall only apply during the 
period when the mother is employed. This is due to the fact that the maternity allowance 
is not paid for the birth of a child but for care of the child (because the guardian loses the 
possibility to earn money).195  

5.3.8  Right to return to the same or an equivalent job (Article 15 of Directive 2006/54) 

The right to return to the same or an equivalent job after maternity leave is guaranteed 
in Article 1832 of the LC. According to this provision, after the end of a period of maternity 
leave, the employer shall accept an employee to resume work in the previous position or, 
if this is not possible, in a position equivalent to the position held before the leave or in 
another  position  that  corresponds  to  the  employee’s  professional  qualifications,  against 
remuneration in the amount that would be due if the leave had not been used. All changes 
in remuneration which occurred during this leave should be included.196 

5.3.9  Legal right to share maternity leave 

Article 180(4) of the LC provides for the possibility of sharing part of the maternity leave 
with  the  child’s  father,  although  it  does  not  speak  about  this  option  in  terms  of  a  legal 
right of the father (because his entitlements are dependent on the insurance entitlements 
of the mother of the child). In result, the father employee – although he is insured on the 
conditions provided for in the Law of 13 October 1998 on the system of social security – 
is not entitled to the part of maternity leave if for instance, the mother employee is insured 
in another EU member state on worse conditions compared to the Polish conditions. The 
subjective right to maternity leave is vested exclusively with the mother, who may (after 
taking  14  weeks  of  this  leave,  or  in  some  cases  8  weeks  of  the  leave)  resign  from  the 
remaining part of it (and thus from receiving the maternity allowance), for the benefit of 
the insured father of the child,197 or, in specific circumstances,198 also for an immediate 

195  Sobczyk, A., (in) Kodeks pracy. Komentarz (Labour Code. Commentary) ed. Sobczyk, A., 2nd edition, C.H. 

Beck, Warszawa 2015, p. 745. 

196  Patulski, W., (in) Kodeks pracy. Komentarz (Labour Code. Commentary), ed. Muszalski, M., 8th edition, 

C.H. Beck, Warszawa 2011, p. 804. 

197  A female employee with a certificate of incapacity for independent living is entitled to withdraw from the 
remaining maternity leave, after having taken at least eight weeks after childbirth, for the benefit of the 
insured father raising the child or of another insured member of the immediate (closest) family. 
(Article 180(6-7)) LC. The insured father (or a member of the closest family) has the right to the remaining 
part of maternity leave (allowance) in the case where the woman is placed in hospital or in the event of her 
death. In the case of abandonment of the child by the woman, she is entitled only to eight weeks of 
maternity allowance. In the event of the birth of a child requiring hospital care, an employee who has taken 
eight weeks of maternity leave after the birth may take the remaining part of the leave at a later date, 
when the child leaves the hospital (Article 181 LC).  

198  That is when: the mother of the child has been declared incapable of independent existence, is in hospital, 

has died, or has abandoned the child (Article 180 Sections 6, 10, 12 and 13 LC). 

69 

 
 
 
 
 
 
 
 
family member of the employee.199 According to the Law of 16 May 2019 amending the 
LC  (JoL  2019  Item  1043), 
the  special  protection  against  dismissal  during 
maternity/parental200 leave  enjoyed by  employee mothers  or fathers shall  also apply to 
such immediate family member (new wording of Article 177(5) of the LC). 

The LC does not provide the possibility to take maternity leave  on a part-time basis. It 
means that only ‘full-time’ maternity leave is permissible.  

5.3.10 Case law 

There have been cases of discrimination against women in relation to maternity, resulting 
in differences in wage and refusal of access to professional training offered to employees, 
because of frequent use of childbirth-related leave.201  

An  issue  of  constitutionality,  for  example,  arose  with  regard  to  the  application  of 
Article 2(3) of the Law of 12 December 1997 on Additional Annual Salary202 (so-called 13th 
salaries) during maternity leave. Employees of the budgetary sphere (generally speaking 
those who are paid from public finances)203 are entitled to this 13th month if they have 
worked for at least six months in one calendar year, unless one of the situations listed in 
the law occurs. From amongst the rights associated with childbirth those exceptions only 
mention childcare leave (urlop wychowawczy). Hence no other periods of justified absence 
from  work  may  be  added  to  this  category,  such  as  maternity  or  parental  leave.  The 
Constitutional  Tribunal  in  its  judgment  of  9  July  2012  (P  59/11)  declared  this  provision 
incompatible with the constitutional prohibition of discrimination and principle of protection 
of maternity, to the extent to which it omitted the period of maternity leave.  

In the judgment of 7 October 2014 (I UK 51/14)  the Supreme Court ruled (in favour of 
the claimant) that in the case of the transfer of a pregnant woman (set for in Article 179 
LC)  from  a  job  classified  as  being  ‘performed  in  special  conditions’  forbidden  for  this 
category  of  women,  to  a  lighter  job,  the  periods  of  receiving  sick  pay  and  maternity 
allowance related to pregnancy and maternity, shall be included in the length of service 
under special conditions.204  

A large portion of the case law relates to dismissal on the basis of Article 10(2) of the so-
called Law on group dismissal.205 This law, despite the name in use, is also applied to cases 
of  individual  dismissal.  This  provision  allows  the  employer  to  dissolve  employment 
contracts also with protected employees, not exclusively in the case of liquidation of the 
enterprise  as  a  whole,  but  just  in  case  his/her  position  is  made  redundant.  A  common 
mistake made by employers, with respect to this law, was indicating only general reasons 
in the justification  of dissolutions  of  employment contracts, such as the need to  reduce 
employment,  without  referring  to  reasons  applicable  to  the  position  of  the  laid  off 

199  They may also enjoy other analogous rights to those of parents bringing up a child (e.g. with regard to 

compensation in the event of an illegal termination of the employment contract, the right to take advantage 
of the leave immediately after the maternity or parental leave). 

200  According to Art. 1821g LC all these provisions shall apply to parental leave as well as maternity leave.  
201  One such case was brought to the Supreme Court, in which a woman sued her employer before the labour 

court, accusing him of discrimination based on sex, age and family status (five children). This was 
manifested in large disparities in income (her wage amounted to 58 % of the average salary of the entire 
crew) and bypassing her with regard to training. The Supreme Court in its judgment of 8 January 2008 (II 
CP 116/07) recognised discrimination. 

202  JoL 1997 No. 160, Item 1080. Hereafter Law on additional annual salary. 
203  The full list of employees of the budgetary sphere is provided for in Article 5 of the Law of 23 December 
1999 on Remuneration in the State Budget Sector (unified text JoL 2018 Item 2288). This list includes 
among others: persons occupying managerial state positions; members of the civil service corps; full-time 
members of self-government; teachers employed in schools and institutions run by government 
administration bodies; professional soldiers. 

204  The required period of service entitling the worker, for instance, to a retirement pension, in the case of 

work in special conditions, is shorter than normal. 

205  The Law of 13 March 2003 on special rules regarding the termination of employment relationships for 

reasons not related to employees. Consolidated text JoL 2018 Item 1969.  

70 

 
  
 
 
 
 
 
 
employee in particular. Courts of 1st and 2nd instance usually did not pay attention to the 
incorrectness of such practice. Therefore, the Supreme Court, in the ruling of 25 January 
2013 (I PK 172/12), explicitly noted that:  

‘in a  situation when the dissolution  of employment contract  relates to a particular 
employee, selected by the employer from a larger group of employees, working  in 
the same positions, by assessing the reason for dismissal, one has to indicate not 
only  organisational  changes  or  reduction  of  employment,  but  also  the  criteria  of 
selecting the particular employee’.  

Following this way of thinking, the Regional Court for Warsaw Praga-Południe, in a ruling 
of  29  July  2014  (VI  P  167/13),  accepted  the  claim  of  women  being  dismissed  during 
childcare leave. In the opinion of this Court, the employer in the justification for dismissal 
did not indicate why it chose to dissolve the contract with the claimant (or what criteria 
were in use to select the persons for lay off), while having seven other persons in a similar 
situation to choose from. The fact that at the same time, six other persons on childcare 
leave were dismissed, was for the Court the confirmation that the defendant, in selection 
of  employees  for  dismissal,  applied  discriminatory  criteria  (in  the  form  of  taking  up  of 
parental rights).  

The  case  law  of  the  SC  is  also  connected  with  improper  interpretation  by  the  employer 
(and some of the courts of lower instances) of the obligation to employ employees in the 
previous position after their return from maternity leave, with the same pay to which they 
would have been entitled if they had not taken up the leave (Article 1832 LC). As regards 
employment of an employee after her return from maternity leave, in the judgment of 26 
January  2017  (II  PK  333/15),  the  Supreme  Court  clearly  specified  how  the  employer 
should make a decision in this matter in terms of the order of the proposals submitted to 
the employee. In the first instance, the employee is guaranteed a return to the position 
occupied  before  the  maternity  leave,  and  only  after  the  return  to  this  position  is  not 
possible, the employer shall offer him/her a position equivalent or corresponding to his/her 
professional qualifications. It means that, in any case, the employer cannot terminate the 
employment relationship with the employee due to the fact that the employee’s position 
was made redundant. Inability to work in the current position should be objective. It should 
result from a change in the organisational structure of the enterprise and depends only on 
the existence of a previous position. Therefore, the alternative employment, with the same 
pay, is excluded in the situation when the position has not been liquidated, but another 
person has already been employed in it. In this way, the legislator protects the stability of 
employment of an employee returning from maternity leave. In the mentioned case, there 
was no  objective impossibility to  employ the claimant  in her previous  position, because 
this  position  still  existed  in  the  organisational  structure  of  the  employer’s  enterprise, 
moreover, an external recruitment had been organised in order to fill this position, as a 
result of which another person was employed, who did not take up parental rights. Crucial 
for the assessment as to whether the working conditions of the claimant have worsened 
is if, before taking the leave, she was entitled to such pay components as annual premium 
or responsibility bonus, regardless of the legal basis on which they were awarded. If, upon 
return from maternity leave, the claimant was transferred to another unit, where such pay 
components  were  not  available,  this  transfer  resulted  not  only  in  a  change  of  working 
position, but also in a deterioration of pay conditions of the claimant and should thus be 
considered as discrimination.206 This ruling was generally correct, however, there are two 
critical  remarks  to  be  made.  First  of  all,  the  SC  only  presented  its  general  remarks  on 

206   In this case the claimant accused the employer of violating Article 1832 LC and discriminating against her, 
in the understanding of Article 183a(1) LC and Article 113 LC, with regard to taking up by the employee of 
her rights related to parenthood. The court of 1st instance agreed with arguments of the defendant-
employer, deciding that he did not violate his obligations resulting from Article 1832 LC, and that he did not 
discriminate against her, in the understanding of Article 183a LC and Article 113 LC. The court of 2nd 
instance confirmed this ruling. Only the Supreme Court, after the claimant lodged a cassation claim, shared 
her arguments. In concluding, the SC noted that the rulings of the court of 2nd instance occurred with 
violation of material law, regarding discrimination in employment.  

71 

 
 
 
 
 
shifting  the  burden  of  proof  in  discrimination  cases,  regulated  in  Article  183b  LC  and  its 
interpretation  in  EU  law  and  previous  Supreme  Court  (SC)  jurisprudence.  It  failed, 
however, to indicate the effects of this rule for the present case, despite the fact that the 
claimant  raised  the  problem  that  the  court  of  2nd  instance  should  have  found  that  the 
requirement of making discrimination probable was met by the mere fact that the claimant 
was  not  employed  in  her  previous  or  equivalent  position.  Secondly,  despite  having 
correctly decided that, in order to properly assess the violation of the non-discrimination 
rule, the situation of the claimant has to be compared with treatment of other employees 
in similar conditions, the SC failed to make any detailed findings in this regard.  

It  happened  in  practice  that  the  courts  questioned  the  amount  of  maternity  allowance 
agreed  by  the  Social  Insurance  Institution  (ZUS)  in  its  decisions.  For  example,  in  the 
judgment of 6 December 2016 (II UK 439/15) the Supreme Court ruled that an insured 
person  who  was  temporarily  full-time  employed,  but  had  been  on  sick  leave  for  almost 
nine months due to medical complications connected with the pregnancy, retains the right 
to maternity allowance in full, despite the fact that she agreed to reduce her working time 
to half-time, before taking the sick leave.  This case  was about a woman employed in a 
bank who initially worked part-time. Then the employer temporarily increased her working 
time to full-time, and she agreed to work part-time again after three months. Before this 
happened, however, the employee took sick leave due to a pregnancy. At that time, until 
the birth of the child, the Bank paid her a full-time sickness benefit. However, when the 
woman gave birth to the child, the Social Insurance Institution (ZUS) started to pay her 
maternity allowance calculated on a half-time basis. As a result, the woman received half 
as much money monthly. The insured person disagreed with this decision and appealed it 
to the court. The court acknowledged her claim referring to Article 43 of the Act of 25 June 
1999 on social insurance benefits in cases of sickness and maternity, according to which 
the basis for benefit assessment is not re-established if there was no break between the 
periods  of  receiving  both  the  same  and  different  types  of  benefits,  or  if  the  break  was 
shorter  than  three  calendar  months.  The  court  indicated  that  from  the  time  when  the 
woman  went  on  medical  leave  until  the  birth  of  her  child,  she  was  receiving  sick  leave 
allowance.  In  view  of  this  provision,  the  court  held  that  ZUS,  when  granting  maternity 
allowance, should not recalculate its amount. 

It has to be noted that protection against dismissal often ceased automatically with the 
return to work. This means that, in many cases, the decision to dismiss a woman after her 
return from maternity leave has been planned by the employer in advance, already during 
that  leave.  Such  employer’s  behaviour  is  contradictory  to  Article  10  of  Council 
Directive 92/85/EEC of  19 October 1992.207 According to the  case law of  the CJEU, this 
provision  must  be  interpreted  as  prohibiting  not  only  the  notification  of  a  decision  to 
dismiss  on the grounds of pregnancy  and/or of the birth of a  child during the period  of 
protection set down in Paragraph 1 of that Article but also the taking of preparatory steps 
for such a decision before the end of that period.208 

The jurisprudence of the Supreme Court, which is criticised in literature,209 shows that the 
employer has an absolute obligation to allow an employee to work after leave related to 
the birth or raising of a child. It does not mean, however, that he cannot terminate the 
employment contract after return from such leave (cf. the reasoning of the Supreme Court 
resolution of 30.12.1985, III PZP 50/85).  

The  provisions  of  the  LC  prohibit  dismissal  during  maternity  leave  and  guarantee 
employees  the  possibility  to  return  to  work  in  the  previous  position  after  the  end  of 

207  On the introduction of measures to encourage improvements in the safety and health at work of pregnant 

workers and workers who have recently given birth or are breastfeeding. 

208  So stated CJEU in C-460/06 Nadine Paquay v Société d’architectes Hoet + Minne SPRL (2007) 

EU:C:2007:601. 

209  See: Sobczyk, A. (in) Kodeks pracy. Komentarz (Labour Code. Commentary) ed. Sobczyk, A., 2nd edition, 

C.H. Beck, Warszawa 2015, p. 777. 

72 

 
 
 
 
 
 
maternity  leave,  yet  they  do  not  safeguard  protection  from  dismissal  or  termination  of 
employment agreement thereafter. It is common belief that cases of dismissing women 
with  young  children  are  quite  frequent.  According  to  the  State  Labour  post-inspection 
report, out of 875 women taking up maternity leave in 2012, 50 were dismissed within 6 
months  after  returning  to  work  (constituting  6  %  of  cases).  In  2013,  respectively,  34 
women out of 785 were dismissed (4.3 %). As regards men returning to work after taking 
up their part of maternity leave, the percentages were higher, amounting to 12 % in 2012 
(11 out of 87 cases) and 10 % in 2013 (4 out of 39 cases).210 These numbers seem to 
confirm  the  common  belief;  however,  one  should  be  careful  to  generalise  it,  without 
knowing  the  overall  percentage  of  persons  who  were  dismissed,  in  comparison  to  the 
general number of persons employed in a particular enterprise.  

5.4  Adoption leave 

5.4.1  Existence of adoption leave in national law 

The Labour Code in Article 183 provides for adoption leave in the wording introduced by 
the Law of 6 December 2008211 and modified by the Law of 24 July 2015.212 The length of 
the leave depends on the number of children adopted at the same time and corresponds 
with the leave at childbirth. It amounts to 20 weeks (210 days) for one child and up to 37 
weeks (258 days) for five or more children.  

Such leave may be taken by the employee (adoptive mother or adoptive father) until the 
child is 7 years old (10 for a child with disability) (Article 183(1) of the LC). If, for example, 
the child is to turn  seven  in less than nine weeks  after being adopted, the employee is 
entitled to a period of leave of nine weeks (Article 183(3) LC). A condition for receiving 
leave in the case of adoption is assuming the care of a child and applying to a family court 
for the adoption procedure or accepting the child for  raising as a foster family (with the 
exception of professional foster families, Article 183(1) LC).  

5.4.2  Protection against dismissal (Article 16 of Directive 2006/54) 

The Labour Code provides for protection against dismissal of workers who take adoption 
leave  and  specifies  their  rights  after  the  end  of  adoption  leave.  The  protection  of  the 
employment relationship of foster parents is the same as that for natural parents. 

Articles 183(2) and 1832 of the LC apply here. According to Article 183(2) of the LC, several 
provisions regarding the protection of natural parents are to be applied accordingly, among 
others,  to  the  consequences  of  unlawful  dissolution  of  employment  relationships  with 
foster parents (Articles 45(3), 47, 50(5), 57(2) LC); provisions of Article 177 LC prohibiting 
dismissal  of  an  employee  during  maternity  leave;  Article  180(4)  allowing  the  adoptive 
mother to renounce part of the maternity leave on behalf of the father of the child and 
Article 181 LC allowing the employee, in the event of the birth of a child requiring hospital 
care, to take a remaining part of the leave when the child leaves the hospital.  

5.4.3  Case law 

Until  being  cleared  by  the  Supreme  Court,  the  issue  of  qualification  of  a  particular 
employee as a person  entitled to  adoption leave caused practical problems. In  order to 
admit  an  employee  to  parental  leave  in  such  cases,  employers  required  employees  to 
present  a  formal  decision  of  a  family  court,  on  the  temporary  acquisition  of  rights  of 

210   Cf.: Results of investigation on the layoffs of persons returning from maternity, paternity, and parental 

leave and the observance of other employee rights, State Inspectorate of Labour, 2014 
https://www.pip.gov.pl/pl/f/v/100996/sprawozdanie2013.pdf. 

211  JoL 2008 No. 237, Item 1654 with amendments, in force since 1 January 2009. 
212  JoL 2015 Item 1268 and JoL 2015 Item 1735, in force since 2 January 2016. Further cited as amendments 

of the LC of 24 July 2015. 

73 

 
 
 
 
 
 
 
 
  
 
 
custody over a child. Only then they considered the condition of ‘taking a child for raising’, 
provided for in Article 183 Section 1 LC, to be fulfilled.  

In one of the examined cases, the Courts of 1st and 2nd instance confirmed such practice, 
rejecting the claim of a woman for granting her adoptive leave, before such court decision 
was  issued.213  As  a  result  of  a  cassation  claim  filed  by  the  claimant,  the  ruling  of  2nd 
instance was overruled by the ruling of the Supreme Court of 4 June 2012 (I PK 4/12) and 
the case was referred back to the court for re-examination. In the reasoning in this ruling 
the SC noted that employees who filed a formal notion for adoption and who in fact are 
actually bringing up the child (even if the custody has not been formally established by 
court  for  the  duration  of  the  proceeding),  are  also  entitled  to  adoption  leave.  The  SC 
referred to a systemic interpretation, noting among other things that it is not possible to 
assume  that  the  term  ‘taking  a  child  for  raising’  has  any  other  meaning  than  the  one 
resulting from social security regulations (namely, actual custody over a child, irrespective 
of the formal status of the caregiver).214 In conclusion the SC stated that Article 183(1) 
LC does not make the right to leave, under the conditions of maternity leave, dependent 
on  the  employee  obtaining  a  decision  on  entrusting  custody  of  a  child  pursuant  to 
Article 120[1] of the Family Code. 

5.5  Parental leave 

5.5.1  Implementation of Directive 2010/18 

The  Directive  2010/18  has  been  implemented  in  Poland;  however,  it  is  not  clear  which 
type of leave should be considered as parental leave within the meaning of this Directive. 

The formal amendment of the Labour Code with respect to childcare leave, implementing 
the provisions of Directive 2010/18, was made in the Law of 26 July 2013,215 which entered 
into force on 1 October 2013.216 The tables to illustrate the correlation between the above 
Directive  and  the  transposition  measures  were  added  as  an  appendix  to  Parliamentary 
Document  No.  909  of  21  November  2012,  including  the  draft  law.217  Therefore,  unpaid 
childcare  leave  (urlop  wychowawczy)  provided  for  in  Article  186  of  the  LC,  should  be 
regarded beyond doubt as such leave.  

function  has  been  considered  by  the  scholars  as  also 

Doubts  arise  in  relation  to  paid  parental  leave  (urlop  rodzicielski)218  which  due  to  the 
specific 
implementing 
Directive 2010/18, despite the fact that the regulations first introducing this type of leave 
mentioned  neither  the  above  Directive,  nor  its  predecessor.219  This  leave  is  currently 
regulated in Articles 1821a, 1821c, 1821d-1821g of the LC. 

213  The argument was raised that acceptance of the state of facts, as allowing for the application of article 183 
(1 LC), could lead to unjustified uptake of maternal leave by the claimant, in a case where her motion for 
adoption is refused by the court.  

214  This issue is of great importance, since yearly, there are around 3 000 adoptions (for example, in 2016 – 

2 800).  

215  Law of 26 July 2013 amending Labour Code, JoL 2013 Item 1028. It should be added that Poland asked for 

the implementation deadline of this Directive to be postponed.  

216  With regard to these changes, on the basis of the authorisation included in Article 1866 of the LC, a new 
ordinance of the Minister of Labour and Social Policy of 18 September was issued, regarding detailed 
conditions for granting childcare leave, JoL 2013 Item 1139. 
217  They were published together with the draft on the website: 

http://www.sejm.gov.pl/sejm7.nsf/PrzebiegProc.xsp?nr=909. It is worth noting that the European trade 
union confederation (ETUC) interpretation guide to Directive 2010/18 has also been translated into Polish 
and published.  

218  The parental leave (urlop rodzicielski) in actual form has been in force since 24 July 2015 (JoL 2015 Item 
1268). This leave is a result of the combining (merging) of no longer existing additional maternity leave 
(dodatkowy urlop macierzyński), introduced into the Labour Code by the Law of 25 November 2010 (JoL 
2010 No. 294 Item 1655), and parental leave (urlop rodzicielski) introduced by the Law of 28 May 2013 on 
the amendment of the LC and other laws, JoL 2013 Item 675.  

219  It should be noted that the introduction of all childbirth-related leave, including parental leave, was justified 

by the pro-natalist Government policy. At the same time, the reasoning to the draft law of 2013 

74 

 
 
 
 
 
 
 
 
 
5.5.2  Applicability to public and private sectors (Clause 1 of Directive 2010/18) 

The provisions of the LC, including those regarding parental leave (urlop rodzicielski) and 
childcare leave (urlop wychowawczy), apply both to the public sector and to the private 
sector, and both parents as well as adoptive parents are entitled to them.  

5.5.3  Scope of the transposing legislation  

The right to parental leave (urlop rodzicielski) and childcare leave (urlop wychowawczy) 
does not depend on the type of employment contract. This means that the leave is granted 
both to persons employed on the basis of an open-ended contract and to workers with a 
contract for a specified period, e.g. for a trial period, for a fixed-term period, or for the 
performance of a specific job. Temporary workers, both male and female, are entitled to 
childbirth-related leave and childcare leave according to the general rules stipulated in the 
LC.220 

It is worth underlining that the Law of 24 July 2015 on amendment of the Labour Code 
and  some  other  laws,  introduced  a  new  provision  (Article  1751  LC),  stipulating  that  all 
rights guaranteed in this Code, related to protection of pregnancy and childbirth, including 
parental leave, will apply to all insured persons (and not exclusively to employees in the 
meaning of the LC, as it was before). In practice, this means that parents have the option 
to share childcare-related rights in situations where: either both are employees or both 
are insured against sickness/maternity from other sources (e.g. self-employment, a civil 
law contract), or one of them has employee status, while the other is self-employed or is 
working under a civil law contract and is covered by voluntary insurance (in the case of 
sickness/maternity). Exceptionally, an employed father may take childbirth-related leave 
when the mother is not entitled to any social security in  the case of sickness/maternity 
and if she is unable or unwilling to take care of the child.221  

If  neither  parent  is  working,  they  are  not  entitled  to  maternity  benefits  (zasiłek 
macierzyński) as such. However, since 2016, one of the parents, if they are students, or 
both are actually unemployed (not  dependent  on whether or not they are  registered as 
being unemployed),222 are entitled to receive PLN 1 000 (EUR 221) monthly until the child 
reaches the age of one (this is the so-called parental benefit – świadczenie rodzicielskie).223 
In addition, as already mentioned, they are also entitled to the monthly ‘Family PLN 500-
plus benefit’ for every child (until the child reaches the age of 18). 

emphasised the fact that its contents lie outside the scope of EU law (Cf.: Parliamentary Print No. 939, 
http://www.sejm.gov.pl/sejm7.nsf/druk.xsp?nr=939). 

220  In conjunction with the Law of 9 July 2003 on the employment of temporary workers. Such leave should be 

agreed before the contract ends unless the employer would like to renew the contract for temporary 
employment. (See Resolution of Supreme Court of 21 November 1978, I PZP 28/78).  

221  In terms of the Law of 13 October 1998 on the social security system. 
222  If the person in question has an official ‘unemployed’ status through being registered at an Employment 

Office (directly after being employed for at least one year), she/he will be additionally entitled to 
unemployment benefit for 6 months (with the possibility of an extension for up to one year). The amount of 
this benefit is circa EUR 152-221 (PLN 700-1 000 depending on the length of time that she/he has worked 
before becoming unemployed and the amount of the minimum wage). During that period the State will pay 
the unemployed person’s social pension/rental insurance as well as his/her health insurance contributions, 
but not his/her sickness/maternity insurance contributions. Therefore, these unemployed persons are not 
entitled to maternity benefits similar to those received by employed persons. However, if being registered 
as unemployed has taken place before the woman became pregnant, such unemployment benefit will be 
paid to her not only during the whole pregnancy, but also after the birth of the child (as long as she would 
receive the maternity benefits if she were employed under an employment contract). The unemployment 
benefit is paid in such a situation regardless of the parental benefit and the Family 500 plus benefit. 
Therefore, some are of the opinion that such a regulation demotivates young women from seeking 
employment, http://praca.gazetaprawna.pl/artykuly/862018,matce-oplaci-sie-brak-zatrudnienia-nawet-
1700zl-dla-bezrobotnego-rodzica.html.  

223  The lower maternity benefit of farmers who are insured against sickness/maternity; self-employed persons 
working outside the agricultural sector (V.565.75.2017) and persons working on the basis of civil contracts, 
will also be upgraded to PLN 1 000 (EUR 221) per month. 

75 

 
 
 
 
 
 
 
 
5.5.4  Length of parental leave 

Since 2 January 2016, the duration of paid parental leave (urlop rodzicielski), which has 
to be taken directly after the end of the maternity leave, is 32 weeks (when giving birth 
to one child in one birth) and 34 weeks when giving birth to more children in one birth 
(Article 1821a(1) of the LC).  

In addition,  each parent is entitled to unpaid childcare leave (urlop  wychowawczy)  of a 
total  aggregated  duration  which  generally  amounts  to  a  maximum  of  36  months 
(Article 186(2) of the LC) and in the case of a disabled child, to a maximum of 72 months. 
Article 186(31) of the LC stipulates that both parents or guardians of the child are entitled 
to leave in the above limits jointly. There are no differences as to the duration of these 
types of leave between the public and the private sector. 

5.5.5  Age limits 

Since 2 January 2016, parental leave (urlop rodzicielski) is to be taken in whole or in parts 
until the end of the calendar year in which the child reaches the age of six (Article 1821c(1) 
of the LC). 

The same age limit is established in cases of unpaid childcare leave (urlop wychowawczy), 
which may be taken at any time, under the condition that it will be finished by the end of 
the calendar year in which the child reaches the age of 6 (Article 186(2) of the LC), or 18 
in the case of a disabled child (Article 186(3) of the LC). 

5.5.6  Individual nature of the right to parental leave  

Article 1821a LC stipulates that each employee has the right to paid parental leave (urlop 
rodzicielski)  which  should  be  understood  as  entitlement  of  each  of  the  parents  to  an 
individual right to this leave. The entitlement is the same in the case of unpaid childcare 
leave (urlop wychowawczy) (Article 186 LC).  

5.5.7  Transferability of the right to parental leave  

Both parents who are entitled to parental leave (urlop rodzicielski – 1821a(2) of the LC), 
can take it simultaneously (1821a(3) of the LC) or consecutively (each takes a part of it). 
However, in both cases, the total duration of the leave may not exceed 32 weeks (or 34 
in the case of multiple children at one birth). There is also an option for one parent to take 
the  parental  leave  and  another  parent  at  the  same  time  takes  only  the  benefit  without 
leave (1821a(4) of the LC). In such a case, the total aggregated duration of leave and sole 
payment of benefits may not exceed 32 (or 34) weeks (Article 1821a(4) of the LC). The 
possibility to transfer the right to childcare leave (urlop wychowawczy) is provided for in 
Article 186 LC. However, only in the case of this leave, the LC requires that each parent 
has  one  month  of  leave  (with  some  exceptions)  for  exclusively  his/her  own  use,  which 
means that it expires if not taken (Article 186(4) and (5) LC).  

5.5.8  Forms of parental leave 

Paid parental leave (urlop rodzicielski) may be divided into a maximum of four parts, which 
have to follow each other directly (Article 1821c(2) of the LC). This rule does not apply in 
the case of piecemeal parental leave up to 16 weeks (Article 1821c(3) of the LC), which 
may  be  taken  later  on,  also  after  the  break.  Each  part  of  parental  leave  may  not  (with 
some exceptions) be shorter than eight weeks (Article 1821c(4) of the LC).  

Until 2 January 2016, a worker could combine parental leave (urlop rodzicielski) with work 
for the same employer, not exceeding half of the regular working time. In such cases, the 
leave was granted for the rest of the working time. In such a situation, however, there 

76 

 
 
 
 
 
 
 
 
 
 
 
 
 
was  no  possibility  to  extend  the  length  of  parental  leave.  For  this  reason,  commencing 
employment during parental leave was very rare. Since 2 January 2016, the possibility of 
extension exists with regard to parental leave. If such leave were to be combined with, for 
example,  half-time  employment,  its  length  could  thus  be  extended  to  64  months  (68 
months in the case of multiple children at one birth) (Article 1821e(1-2) and 1821f(1-5) of 
the LC).  

Unpaid  childcare  leave  (urlop  wychowawczy)  may  also  be  taken  by  both  parents  at  the 
same time, without any time restrictions, however, the overall amount of the leave may 
not exceed the maximum amount of 36 months (72 months for a child with disabilities). 
At the same time, as already mentioned, each parent has an exclusive right to one month 
of the childcare leave, which expires if not taken. This does not apply to single parents, 
when the parent has died or has been deprived of custody over the child (Article 186(4) 
and  (9)  of  the  LC).  In  such  cases,  the  other  parent  is  entitled  to  the  full  36  months  of 
childcare leave. Childcare leave may be divided in up to five parts (Article 186(8) of the 
LC).  In  addition,  the  worker  entitled  to  childcare  leave  may  file  a  written  request  to 
decrease  their  working  time  to  a  number  of  hours  not  less  than  half  of  full-time  work 
(Article 1867(1) LC). The employer may not refuse such request.  

The Polish regulations regarding teleworking and other flexible work arrangements are not 
explicitly related to better reconciliation of work with family life, but remain available for 
parents returning from parental leave on a general basis (Articles 675-6718 LC).224 

In order to allow the employer better planning of work and to eliminate possible negative 
effects resulting from employees taking advantage of their parenthood-related rights, as 
of  2  January  2016,  the  notice  period,  both  for  the  paid  parental  leave  and  for  unpaid 
childcare leave, has been extended to 21 days; the minimal length of one part of the leave 
will amount to 8 weeks. Also, earlier return to work by an employee who stops the parental 
leave or childcare leave, will only be possible upon consent of the employer. Additionally, 
as a safeguard of the employer’s interests, his consent will be required for any proportional 
extension of the parental leave, when it is to be combined with work. 

5.5.9  Work and/or length of service requirements (Clause 3(b) of Directive 2010/18) 

There  are  no  work  or  length  of  service  requirements  in  order  to  be  entitled  to  parental 
leave (urlop  rodzicielski) provided for in  Article 1791 of the LC. However, in the case  of 
childcare  leave  (urlop  wychowawczy,  regulated  in  Article  186(1)  LC),  there  is  the 
requirement for at least six months’ service. 

In order to be entitled to parental leave (urlop rodzicielski) it is enough to be insured by 
social insurance. The entitlement to the leave, as well as the overall amount of parental 
benefits for employees, does not depend on the length of service or length of insurance. 
The benefits for employees depend solely on the amount of salary.  

This  was  also  the  case  of  insured  self-employed  persons  who  were  not  employees. 
However, as of 1 January 2016, their situation has changed dramatically. According to the 
Law of 15 May 2015, the initial amount of the parental benefits in the case of self-employed 
persons depends on the length of payment and amount of insurance contributions. On the 
other hand, in the case of farmers, who are under the special system of insurance,225 the 
entitlement to parental leave and benefits still do not depend on the length of insurance. 

In respect of unpaid childcare leave (urlop wychowawczy), in order to obtain the right to 
childcare  leave,  a  worker  must  be  in  service  for  at  least  six  months.  The  six-month 
employment period includes previous employment (Article 186(1) LC), not necessarily with 

224  Law of 24 July 2015 on amendment of the Labour Code and some other laws. JoL 2015 Item 1268. 
225  Provided by the Law of 20 December 1990 on Social Security for Farmers, unified Text JoL 2016 Item 277. 

77 

 
 
 
 
 
 
 
 
 
 
the  employer  where  the  request  is  submitted.  This  six-month  period  may  include  all 
previous employment periods on the basis of an employment relationship, regardless of 
the reason why those relationships were terminated and regardless of the length of gaps 
between  subsequent  employment  (Article  186(1)  LC).  For  citizens  of  the  EU  and  EEA 
Member  States,  the  six-month  period  may  also  include  employment  periods  on  the 
territory of those countries.226 The six-month employment period, according to case law, 
also  includes  registered  unemployment  periods  for  which  the  person  had  received 
unemployment benefits.227  

5.5.10 Notice period 

As of 2 January 2016, the notice period, both for the paid parental leave (urlop rodzicielski) 
and  for  unpaid  childcare  leave  (urlop  wychowawczy),  has  been  extended  to  21  days  in 
order  to  provide  better  protection  for  the  employer.  Previously  the  fixed  time  limits  for 
filing (or withdrawing) the request (7 or 14 days) had been strongly criticised.228  

5.5.11 Postponement of parental leave (Clause 3 of Directive 2010/18) 

The  only  circumstance  which  would  allow  the  employer  to  postpone  the  granting  of 
parental leave (urlop rodzicielski) is connected  with failing  to meet  the deadline for the 
notice.  

The  employer  is  obliged  to  allow  the  worker  to  take  advantage  of  the  leave  during  the 
period indicated in the request if it has been submitted within the prescribed time limits 
of 21 days. Should any of the requests be submitted without observing this deadline, the 
employer may delay the beginning of the leave, but by no longer than 21 days from the 
day  on  which  the  request  has  been  filed  (Article  1791  Article  1821d(1),  1824).  Similar 
rules229  are  provided  in  the  case  of  childcare  leave  (urlop  wychowawczy,  regulated  in 
Article 186(7) and (71) of the LC).  

There are no other legal regulations regarding the possibility for the employer to postpone 
childbirth- and childcare-related leave.  

5.5.12 Special arrangements for small firms (Clause 3(d) of Directive 2010/18) 

Currently  there  are  no  special  regulations  regarding  the  taking  of  parental  or  childcare 
leave by workers of small firms. 

5.5.13 Special rules and exceptional conditions for parents of children with a disability or 

long-term illness (Clause 3(3) of Directive 2010/18) 

According to Article 186(3) if, due to a health condition confirmed by a statement about 
disability based among others on medical certificate, a child requires personal care by a 
worker, then regardless of the ‘regular’ time limits of childcare leave (urlop wychowawczy), 
the worker may take 36 additional months of childcare leave, and the additional childcare 
leave may be granted before the child reaches the age of 18, even if the worker has not 
previously used the first 36 months of childcare leave to which he is entitled before the 
child reaches the age of 6. In the case of adoption of a child with disabilities, according to 
Article 183(1) LC, leave on the conditions of maternity leave may be taken until the child 

226  Cf.: Świątkowski, A.M., Kodeks pracy. Komentarz (Labour Code. Commentary), 4th edition, C.H. Beck, 

Warszawa 2012, p. 862. 

227  Cf.: Ruling of the Court of Appeals in Bialystok of 18 June 1998, III AUa 296/98, OSA 1999/5/28. 
228  Świątkowski, A.M., Kodeks pracy. Komentarz (Labour Code. Commentary), 4th edition, C.H. Beck, 

Warszawa 2012, p. 860. 

229  That is, notice of 21 days and the obligation of the employer to allow the worker to take advantage of 

paternity leave.  

78 

 
 
 
 
 
 
 
 
 
 
 
 
reaches the age of 10 (in other cases, 7). The same time limits apply to paternity leave 
(urlop ojcowski) (Article 1823(1) LC). 

5.5.14 Measures addressing the specific needs of adoptive parents (Clause 4 of Directive 

2010/18) 

The legislator addresses the specific needs of adoptive parents by raising the maximum 
age of the child (7 years instead of 6; in the case of a child with disabilities, up to 10), 
which entitles adoptive parents to parental leave, and by providing a special term of such 
leave  (9  weeks)  in  the  case  of  adoption  of  a  child  who  is  to  turn  7  shortly  after  being 
adopted.  

5.5.15 Provisions  protecting  workers  against  less  favourable  treatment  or  dismissal 

(Clause 5(4) of Directive 2010/18) 

The  Labour  Code  provides  as  a  rule,  that  the  provisions  protecting  workers  against 
dismissal or less favourable treatment during maternity leave apply also to the parental 
leave (urlop rodzicielski) (Article 1821g in conjunction with Article 177 of the LC).  

In reference to childcare leave (urlop wychowawczy), Article 1868 of the LC stipulates that 
in general,230 the employer may not terminate the contract, from the day that the worker 
submits the request for leave or reduced working time until the last day of the leave or 
the day of return to regular work (but no longer than 12 months altogether). This provision 
corresponds to the content of the Framework Agreement on Parental Leave, constituting 
Annex 5(4) to the Directive 2010/18/EU.  

Also of relevance is Article 12 of the Anti-Discrimination Law,231 which applies to persons 
not covered by protection of the LC. In the case of violation of the equal treatment rule 
stipulated  in  this  law,  with  regard  to  a  natural  person,  with  respect  to,  inter  alia, 
pregnancy,  maternity  leave,  additional  maternity  leave,  leave  granted  under  the  terms 
and conditions of maternity leave, paternal leave, parental leave or childcare leave, this 
person has the right to claim damages, according to Article 13 of this law. 

5.5.16 Right to return to the same or an equivalent job (Clause 5(1) of Directive 2010/18) 

The worker after parental leave and childcare leave (or requested shortening of working 
time)  has  the  right  to  return  to  the  same  or  an  equivalent  job.  In  such  cases,  the  LC 
provides for a similar level of protection of employment relationship as in case of maternity 
leave. According to Articles 1832 and 1864 of the LC, the employer has the obligation to 
re-admit a worker at the end of the childbirth- or childcare-related leave to her/his former 
position.  If  employment  in  the  same  position  is  not  possible,  the  employer  has  the 
obligation to employ her/him in an equivalent position or on the same conditions at another 
job  position,  corresponding  to  the  worker’s  professional  qualifications.  These  provisions 
correspond to the content of Clause 5(1) of the Annex to Directive 2010/18/EU.  

230  The LC allows some exceptions for the termination of the employment contract by the employer: in the 

case of bankruptcy or liquidation of the employer, and for reasons justifying termination of the employment 
contract without notice through the fault of the worker (disciplinary dismissal) (in Article 1821g with 
reference to Article 177(4) and (5), as well as Article 1868(2) of the LC). The difference with a parental 
leave cancellation is that no consent or agreement with the trade union organisation is required in this 
case. 

231  Article 12(1) of the Anti-Discrimination Law after amendments introduced by the Law of 28 May 2013 (JoL 

2013 Item 675). The amendment entered into force on 17 June 2013. 

79 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.5.17 Maintenance of rights acquired or in the process of being acquired by the worker 

(Clause 5(2) of Directive 2010/18) 

Generally,  the  Labour  Code  does  not  explicitly  state  that  the  rights  acquired  (or  in  the 
process of being acquired) by the worker on the date of commencement of childcare leave 
(urlop wychowawczy) shall stand until the end of it. The case law, however, filled this gap.  

However, the Labour Code contains a regulation relating to remuneration after return from 
the leave; namely, in the case of employment after parental leave, when Article 1822 LC232 
applies.  With  regard  to  remuneration,  it  is  provided  that  it  should  be  the  same  as  the 
employee  would  have  received  if  s/he  had  not  taken  their  leave.  The  content  of  this 
provision  as  far  as  parental  leave  is  concerned  appears  to  meet  the  requirements  of 
Clause 5(2) of the Annex to Directive 2010/18/EU.233 

In the case of Article 1864 of the LC, it is said that the remuneration cannot be lower than 
the remuneration for work payable to employees on the date of taking up employment in 
the position held before the leave, which corresponds to the content of Clause 5(2) of the 
Annex to Directive 2010/18/EU.234  

5.5.18 Status of the employment contract or relationship during parental leave 

Parental  and  childcare  leave  are  considered  as  a  justified  interruption  of  work.  The 
employment relationship is maintained during such leave. This results from the wording 
of Articles 177 and 1868 of the LC, according to which the termination of the employment 
contract with an employee during such leave is prohibited. 

The  Law  of  17  December  1998  on  Pensions  from  the  Social  Insurance  Fund  (Ustawa  o 
emeryturach  i  rentach  z  Funduszu  Ubezpieczeń  Społecznych)235  divides  the  periods  in 
which  the  worker  did  not  perform  the  work  because  of  taking  care  of  children,  family 
members, etc. into two categories: contributory periods (okresy składkowe), that is to say 
periods  which  may  be  taken  into  consideration  when  the  retirement  or  survivor’s 
entitlements are calculated; and non-contributory periods (okresy nieskładkowe), that is 
to say such periods that bring the worker closer to retirement (in terms of the time), but 
are not raising the amount of the pension / disability entitlements.236 

Contributory  periods  are  fully  included  in  the  calculation  of  the  right  to  retirement  and 
disability  pensions,  while  non-contributory  periods  are  included  only  in  the  amount  not 
exceeding one third of contributory periods. All periods are considered to be contributory 
periods when so-called maternity allowances (zasiłek macierzyński) are paid.237 

232  Which also applies to maternity leave.  
233  Although, as already pointed out with regard to maternity leave when taken by a woman, it does not meet 

the requirements of Article 15 of Directive 2006/54/EC. 

234  In the case of childcare leave, the remuneration should not be lower than the remuneration on the day 

when the employee started work in the same position as before the leave (Article 1864 LC).  

235  Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych (Act on Pensions from the Social 

Insurance Fund), Consolidated text: JoL 2013 No. 153 Item 1440 as amended, Articles 5-7 (hereafter Law 
on Pensions). 

236  It should be noted that currently (after amendment of the pensions regulations in 2016, which have been in 
force since 1 October 2017), both retirement age and length of service required for retirement are different 
for men and women. In the case of women, they amount to 60 years (with a length of service of 20 years), 
while in the case of men, it is 65 years (with a length of service of 25 years). 

237  According to the Law of 25 June 1999 on Cash Social Insurance Benefits in Respect of Sickness and 

Maternity (Ustawa oświadczeniach pieniężnych z ubezpieczenia społecznego w razie choroby i 
macierzyństwa, Consolidated text JoL 2016 Item 372, with amendments (hereafter Law on Maternity Cash 
Benefits)) it applies to an insured person due to non-performing of work, in connection with acquired: 1) 
maternity leave (urlop macierzyński) 2) parental leave (urlop rodzicielski) 3) paternity leave (urlop 
ojcowski).  

80 

 
 
 
 
 
 
 
 
 
 
Non-contributory  periods  include:  periods  of  childcare  leave  (urlop  wychowawczy)  and 
periods  of  the  employee’s  collecting  care  allowance  for  a  child  or  other  family  member 
(see 5.7 of the Report). 

5.5.19 Continuity of entitlement to social security benefits 

An employee on childcare leave (urlop wychowawczy) is covered by obligatory social and 
healthcare insurance.238 Contributions to these insurances are paid to the Social Security 
Institution (ZUS) from the state budget.  

5.5.20 Remuneration 

Parental leave is not remunerated by the employer. The sickness insurance contribution, 
from which it is paid (amounting to 2.45 % of the remuneration), is financed entirely by 
the  employee.  The  employer  deducts  it  automatically  from  employees’  salaries  and 
transfers it to ZUS. 

5.5.21 Social security allowance 

During maternity and paternity leave (urlop ojcowski) and 6 (or 8) weeks of parental leave 
(urlop rodzicielski), the employee receives an allowance equal to 100 % of the average 
salary  from  the  last  12  months.239  For  the  remaining  part  of  parental  leave  (urlop 
rodzicielski) the allowance is 60 % of the salary. It may be 80 % for the whole period of 
childbirth/childcare-related leave if the woman declares after the child was born that she 
is going to take all such leave. The allowances are paid by ZUS, which receives the sickness 
insurance contributions. Since 1 January 2016, the allowance for self-employed women is 
calculated  on  the  basis  of  the  average  of  the  premiums  (contributions  paid  by  insured 
workers  to  the  Social  Security  Fund)  for  the  last  12  months.240  Childcare  leave  (urlop 
wychowawczy)  is  not  remunerated.  Allowances  in  the  form  of  a  special  supplement  for 
taking care of a child are provided within the social security system but only low-income 
families are entitled to these family benefits. 

5.5.22 More favourable provisions (Clause 8 of Directive 2010/18) 

The relatively long period of paid parental leave (urlop rodzicielski) is positively assessed 
by  the  general  public.  However,  it  is  overlooked  that  it  usually  results  in  difficulties  for 
women  to  reintegrate  into  the  labour  market.  Therefore,  it  should  be  accompanied  by 
special  measures  encouraging  male  employees  to  take  such  leave  and  to  implement 
special programmes which would facilitate such reintegration.  

5.5.23 Case law  

The  case  law  covers  different  aspects  of  parental  leave  (e.g.  unpaid  childcare  leave). 
Doubts were raised, for example, with regard to the length of such leave in the case of 
multiple  pregnancy.  Significant  in  this  respect  is  the  ruling  of  the  Supreme  Court  of  28 
November 2003,241 regarding the amount of childcare leave in the event of giving birth to 
twins, similar in its  conclusion to the judgment of CJEU in  Zoi Chatzi.242 The  LC fails to 
regulate this issue expressis verbis. The Supreme Court, however, has interpreted the law 
in such a way, that the duration of the leave is not to be multiplied by two.  

238  A person on childcare leave is not covered by sickness and accidents insurance. 
239  Articles 31 and 36 of the Law on maternity cash benefits; for the remaining 26 weeks of parental leave the 

allowance is 60 % of salary. 

240  The new rule in this respect has been introduced by the Law of 15 May 2015.  
241  No. II UK 94/02, OSNP 2004/6/106. 
242  Case C-149/10 Zoi Chatzi v Ypourgos Oikonomikon [2010] ECR I-8489.  

81 

 
 
 
 
 
 
 
 
 
 
 
 
 
It  follows  from  the  case  law  that  the  Supreme  Court  attaches  great  importance  to  the 
observance of the deadline for filing a claim for parental leave allowance. In its ruling of 
17 January 2017 (I UK 448/15), the Court ruled that failure to submit an application to 
the disability pension body before the date of commencement of benefits for parental leave 
justifies  a  refusal  to  grant  benefits  (see  also  the  judgment  of  10  August  2016, 
III UK 209/15).  The  Supreme  Court  also  ruled,  in  the  judgment  of  10  August  2016 
(III UK 209/15), that the deadline for submitting an application for granting and paying 
the benefit must fall at the latest on the eve of the commencement of the period for which 
the benefit is to be granted. 

Many  rulings  concerned  the  right  to  special  allowances  or  the  right  of  employees  to 
purchase shares in a company at preferential prices. According to the case law, workers 
on childcare leave (urlop wychowawczy) have e.g. the right to a premium reward (for a 
long  duration  of  work  with  the  same  employer  (e.g.  15  years),  if  the  time  required  for 
getting it elapsed during this parental leave.243 They may also get the disability benefits 
in the event that disability occurred during childcare leave.244 Employees on childcare leave 
are entitled to buy shares of enterprises being privatised, on preferential conditions, just 
as  other  employees.245  Nevertheless  during  three  years  of  childcare  leave  they  are  not 
entitled to paid annual leave, which they only can take before this leave starts.246  

Many rulings of courts of lower instances referred to the problem of maternity allowance 
for the period of extended (additional) maternity leave (possibly parental leave). In one 
of  the  rulings  from  this  series,  issued  on  18  December  2013,247  the  District  Court  for 
Warsaw Śródmieście (Sąd Rejonowy dla Warszawy Sródmieścia) changed the decision of 
the  Social  Security  Institution  (ZUS),  thus  granting  a  mother  the  right  to  an  allowance 
regarding  additional  maternity  leave  and  parental  leave,  considering  that  the  applicant 
had not been informed either by the employer or by employees of the ZUS about her rights 
to the leave and the obligation to file an additional request for the allowance. 

There  were  different  interpretations  of  the  provision  of  Article  1864  LC  dealing  with 
employment after childcare leave (urlop wychowawczy)248 until the Supreme Court, in its 
ruling  from  29  January  2008  (II  PK  143/07),  decided  that  the  basis  for  calculating  the 
remuneration after returning from childcare leave is not the remuneration collected by the 
worker before the leave, but the remuneration for which he/she would be eligible on the 
day of commencing work after childcare leave in the position occupied before the leave.249 
In its  reasoning the Court, inter alia,  refers to EU law,  especially to  Directive 96/34/EU 

243  Resolution of the Supreme Court of 3 June 1992, I PZP 33/92, OSN 1993, Nos 1-2 Item 10. 
244  Judgment of Supreme Court of 15 January 1987, II URN 289/86, PiZS 1987, No. 7, p. 62.  
245  Resolution of Supreme Court of 6 February, III ZP 14/96, OSNAPiUS 1997 No. 18 Item 334. 
246  Cf.: Patulski, W. (in) Kodeks Pracy. Komentarz (Labour Code. Commentary) ed. Muszalski, W., C.H. Beck, 

Warszawa 2011, p. 895. 

247  No. XU-724/13. 
248  This provision is not clearly formulated and was interpreted differently, in particular, in the context of 

different wording used in Article 1832 LC, related to employment after maternity leave. 

249  The SC argued ‘The linguistic interpretation of that provision leaves no doubt that, although the guarantees 
as to the position to be occupied by an employee returning from parental leave has not changed in any way 
in comparison with the previous legal situation, the question of the remuneration to which he/she is entitled 
has been regulated differently. The employer's obligation to provide such a person with remuneration not 
lower than that received before the leave was replaced by the obligation to grant remuneration not lower 
than that due on the date of taking up employment after childcare leave in the position occupied before the 
leave. The point of reference for determining the amount of remuneration for work for a person returning 
from childcare leave was therefore not that person's earnings before exercising the right to leave, but the 
state existing at the time of taking up employment expressed as the amount of remuneration to be paid on 
that date in the position occupied by that person before the leave. Thus, if, during a worker's leave, there 
were wage changes in that post, those changes were relevant to the determination of the amount of that 
worker's remuneration after his/her return from leave. In other words, regardless of the final position 
occupied by the worker on the return from leave, the remuneration which he/she received on that leave 
could not be lower than the remuneration to which every employee is actually entitled in the position which 
that worker occupied before his/her leave’.  

82 

 
 
 
 
 
and  the  Framework  Agreement  on  parental  leave.250  As  an  argument,  the  Court  also 
indicated the constant tendency of the Polish legislator to strengthen the legal protection 
of employees on childcare leave against their professional condition being worsened, due 
to the gap in employment caused by the leave. This is realised by provisions safeguarding 
remuneration at the same level as that which they would receive if the leave had not taken 
place.  

It  should  be  remembered  that  there  is  the  difference  in  formulation  of  Article 1832  LC 
referring  to  the  remuneration  of  an  employee  after  return  to  work  from  maternity  and 
parental leave and the wording of Article 1864 LC (urlop wychowawczy). Since the 1832 LC 
presents correct implementation of the Clause 5(2) Directive 2010/18/EU in this respect, 
the Article 1864 LC does not, since it refers to the remuneration from the date on which 
parental leave starts. 

5.6  Paternity leave 

5.6.1  Existence of paternity leave in national law 

Paternity leave was introduced in Article 1823 of the LC in 2008251 and modified in 2015.252 
It states that a male employee who is a father taking care of a child is entitled to paternity 
leave of 2 weeks, but in no case can it be taken after the child is 24 months old (until 2 
January 2016 it was 12 months). In respect of adoption, the relevant period is 24 months, 
from the day when the adoption order becomes final, and until the child is 7 years old. For 
a child with disabilities the leave may be taken until the child is 10 years old.  

5.6.2  Protection against unfavourable treatment and/or dismissal (Article 16 of Directive 

2006/54) 

The protection against unfavourable treatment and dismissal in the case of paternity leave 
is  the  same  as  in  the  case  of  maternity  and  parental  leave  (Article  1823(3)  of  the  LC). 
Accordingly,  with  regard  to  the  father,  the  provisions  safeguarding  the  durability  of  the 
employment  agreement  during  maternity  leave  (reference  to  Article  177  LC)  as  well  as 
the guarantees of coming back to the same position when returning from paternity leave 
should be applied. If employment in the same position is not possible, the employer has 
an obligation to employ him in an equivalent position or, under the same conditions, in 
another  position  corresponding  to  the  worker’s  professional  qualifications, 
for 
remuneration  not  lower  than  the  remuneration  for  work  that  the  worker  would  have 
received if not having been on leave (Article 1832 LC explicitly mentions paternity leave 
inter alia). 

5.6.3  Case law 

No case law could be identified regarding discriminatory dismissals resulting from taking 
up paternity leave.  

5.7  Time off for force majeure 

5.7.1  Time off for force majeure  

There is no explicit provision on time off for force majeure in the Labour Code. However, 
Article 188 of the LC as amended by the Law of 24 July 2015 provides for the entitlement 

250  This ruling was in line with the judgment of the CJEU of 22 October 2009 in Ch. Meerts v Proost NV, Case 

C-116/08, J.T.T. 2010, p. 52. 

251  By the Law of 6 December 2008, JoL 2008 No. 237 Item 1654. 
252  By the Law of 24 July 2015, JoL 2015 Item 1268.  

83 

 
 
 
 
 
 
 
 
 
 
 
 
 
of  employees  to  time  off  from  work,  including  (presumably)253  on  the  grounds  of  force 
majeure  or  for  urgent  family  reasons.  According  to  this  provision,  the  employee  taking 
care of at least one child under 14 is entitled to a break of 16 hours or 2 days off work in 
every  calendar  year,  while  maintaining  the  right  to  remuneration.254  The  decision  as  to 
which option to choose  is left to the employee  (Article 188(2) of the LC). For part-time 
workers, the hours of such break are reduced proportionally to the established work time 
(Article 188(3) of the LC). This right is granted regardless of the number of children. When 
both  parents  work,  the  right  to  this  two-day  release  from  work  is  granted  only  to  one 
person (Article 1891 LC). Besides the above-mentioned ones, there are no other conditions 
of access to time off from work.  

5.7.2  Case law 

No case law could be identified regarding time off for force majeure. 

5.8  Care leave 

5.8.1  Existence of care (or carers’) leave in national law  

The entitlement of employees to care leave is provided for in Article 35(1) of the Law on 
Maternity Benefits.  

The grounds for care leave are regulated in the Law on Maternity Benefits, as modified by 
the  Law  of  15  May  2015255  (changes  in  force  since  1  January  2016).  According  to 
Article 32(1)  of this Law, a  care benefit is granted to the insured worker who has been 
released from the obligation to perform work due to the need to provide personal care for: 
a sick child, until the child reaches the age of fourteen; or a child younger than eight, in 
the event of unforeseen closing of the nursery, kindergarten or school, as well as sickness 
of a contracted nanny256 or family member who normally takes care of such child. The care 
benefit  may  be  granted  also  in  order  to  take  care  of  another  family  member  in  case  of 
necessity. Article 32(2) of the Law on Maternity Benefits understands as family members: 
spouse, parents, grandparents, parents in law, siblings and children over 14 living together 
with the employee. By children, the Law understands natural, adoptive children of both or 
one of the parents and other children being under their care (Article 32(3) of above Law). 
Pursuant to its Article 321, if an insured mother remains hospitalised after giving birth to 
the child or where it is certain that she is not able to assure her independent existence or 
she decides to abandon the child, the insured father (or other family member) is entitled 
to an additional care benefit of up to eight weeks, if he decides to interrupt his employment 
to take personal care of the child. The monthly care benefits amount to 80 % of the base 
for calculating the benefits (Article 35(1) of the above law).  

The care benefit will be granted for the period of release from work for up to 60 days per 
year when taking care of a child, and up to 14 days per year, when taking care of other 
family  members.  However,  it  cannot  be  granted  for  longer  than  a  total  of  60  days  per 
year,  irrespective  of  the  number  of  family  members  (Article  33(3)  and  (4)).  It  will  be 
refused if there are persons other than the employee living together, who may take care 
of the family member, with the exception of taking care of a child under the age of two 
(Article 34 of the above Law). 

253  The LC does not expressis verbis in this provision relate to force majeure or urgent family reasons and in 

such a case, no evidence of the actual existence of urgent family reasons is required.  

254  The male employee taking care of a child under 14 is also entitled to this right. However, if both parents 

are employed, only one of them may benefit from this form of time off work (Article 1891 LC).  

255  JoL 2015 Items 1066 and 1735.  
256  Employed on the basis of Article 50 of the Law of 4 February 2011 on care of the child under the age of 

three, JoL 2013 Item 1457. 

84 

 
 
 
 
 
 
 
 
 
 
The monthly allowance amounts to 80 % of the basis for calculation of the annual leave. 
It is available for every day of inability to perform work, including holidays. It cannot be 
taken while on unpaid holiday or childcare leave (urlop wychowawczy). 

5.8.2 Case law 

No case law could be identified regarding discriminatory dismissals resulting from taking 
up care leave. 

5.9  Leave in relation to surrogacy 

Surrogacy is not regulated in Poland. For this  reason, the issue of leave connected with 
childbirth or care in such situations has not been regulated separately either. 

5.10 Flexible working time arrangements 

5.10.1 Right to reduce or extend working time  

The legal right of workers to reduce working time on request has been granted to persons 
entitled to parental leave (urlop rodzicielski) (on the basis of Article 1821e LC) and childcare 
leave (urlop wychowawczy) (on the basis of Articles 1867 of the LC).  

For  parental  leave  (urlop  rodzicielski),  the  combination  of  leave  and  work  may  only  be 
made  with  the  same  employer  and  may  not  exceed  half  of  the  full  working  time 
(Article 1821e(1) LC). The commencement of work occurs upon written notification of the 
employee, filed not less than 21 days before the day of returning to work. The employer 
is  under  the  obligation  to  accept  this  request  unless  it  is  not  possible  due  to  the 
organisation  of  work  or  the  type  of  work  performed.  The  employer  shall  inform  the 
employee in writing of the grounds for rejecting the request (Article 1821e(2) of the LC).  

An employee entitled to childcare leave (urlop wychowawczy) may apply to the employer 
in writing for a reduction of his working time to no less than 50 % of his full working time 
in the period during which the leave could be taken. The employer is under the obligation 
to accept this request. There are no exceptions to this rule. If the application is filed less 
than 21 days before the commencement of work in the reduced working-time system, the 
employer  shall  reduce  the  employee’s  working  time  not  later  than  21  days  after  the 
application has been submitted (Article 1867(2) of the LC). In respect of childcare leave, 
the employment relationship enjoys special protection against termination  until the date 
when the employee resumes work in accordance with the regular working time, but in any 
case, the protection cannot be longer than 12 months (Article 1868(1) of the LC). During 
this period a contract of employment may be terminated only if the employer’s bankruptcy 
or liquidation is declared, or if there are grounds for contract termination without notice 
through the fault  of the employee (Article 1868(1.2.) of the LC). This  special protection 
does not apply to parental leave (urlop rodzicielski), which is protected on the same basis 
as maternity leave (Article 1821f, which refers, inter alia, to Article 177 of the LC). 

The request to reduce working time might be submitted by the insured parents of a child 
or in cases indicated in the law257 by insured close relatives (except childcare leave (urlop 
wychowawczy) which may apply only to persons who have the status of employee. This 
relates to the fact that self-employed persons are not entitled to childcare leave).258  

257  The law of 15 May 2015 amending the Law on financial maternity benefits and some other laws (JoL 2015 

Item 1066), in force since 14 August 2015.  

258  The person running a business activity (entrepreneur) and person cooperating with him/her may, however, 
give up their professional activity in order to provide personal care for a child. The use of this right does not 
give any protection, nor results in the payment of any benefit, nevertheless allows the social and health 
insurance contributions to cumulate, which are financed entirely from the state budget, on the account of 
ZUS. 

85 

 
 
 
 
 
 
 
 
 
 
 
 
Every  employee  entitled  to  parental  or  childcare  leave  may  enjoy  the  right  to  reduced 
working  time;  there  are  no  additional  eligibility  criteria  except  those  which  entitled  the 
worker to the appropriate kind of leave or allowance. This right may be exercised for taking 
care of the child until the child reaches the maximum age, up to which the employee is 
entitled  to  a  certain  kind  of  leave  (in  the  case  of  childcare  leave  (urlop  wychowawczy), 
there is an additional time limit of 12 months after the end of this leave). In this specific 
case, the trigger is the fact of returning from childcare leave (in other cases, the moment 
of acquiring the entitlement to parental leave could be considered as a trigger). The Labour 
Code does not make the possibility of reduced or flexible work time dependent on the size 
of the employer. The employer is obliged to comply with such working time arrangement 
requests  if  notice  was  filed  before  the  deadline  and  may  not  refuse  or  postpone  the 
granting  of  such  request.  There  is  no  expressis  verbis  guarantee  of  the  return  to  prior 
working arrangements, however, the obligation of the employer to reinstate the employee 
in the same position after childcare leave (Article 1864 LC) should be applied also in the 
case of reduced worktime, constituting an alternative to part of the childcare leave. There 
are no legal measures to encourage men to make use of such legal right. 

5.10.2 Right to adjust working time patterns  

Since 6 June 2018, the Labour Code259 provides  some groups of workers with the legal 
right  to  have  individual  working  time  patterns  (indywidualny  rozkład  czasu  pracy  – 
Article 142)  which  seems  to  correspond  with  the  possibility  of  adjusting  working  time 
patterns  on  request.260  Generally  speaking,  such  special  entitlement  is  related  to  the 
employees having children with disabilities.  

Pursuant  to  Article  1421 LC,  the  employer  is  obliged  to  accept  the  application  to  adjust 
working time patterns in the case of the following groups of employees: 1) an employee-
spouse or employee-parent of a child in the prenatal phase, in the case of a complicated 
pregnancy; 2) an employee-parent of an unborn child, with established prenatal damage 
or impairment, who has decided not to perform an abortion;261 3) an employee-parent of 
a child with a certificate of disability and in need of special education.262 Employees who 
have  children  with  disabilities  are  entitled  to  this  benefit,  even  after  the  child  turns  18 
(Article 1421(3) LC). The LC does not provide for any other eligibility criteria and the size 
of  enterprise  is  not  a  qualifying  condition.  This  right  is  not,  in  principle,  tied  to  specific 
conditions.  The  employer may refuse to accept the application only in those  cases if its 
acceptance is impossible due to the organisation of work or  the type of work performed 
by an employee. The employer shall inform the employee about the reasons for the refusal 
to  accept  the  application  (in  paper  or  electronic  form).  In  relation  to  other  groups  of 
employees with children, the regular rules for all employees continue to be applied263 which 
means  that  the  decision  to  recognise  the  request  of  the  employees  lies  within  the  full 
discretion of the employer. However, in the case of the employee having a child under the 
age of four, the work time in any flexible work time arrangements may not, without the 

259  Such possibility has been introduced into the Labour Code by the Law of 6 June 2018 on the change of the 
Law on professional and social rehabilitation, as well as employment of persons with disabilities and some 
other laws (JoL 2018 Item 1076).  

260  Those workers also have the right to interrupted work time (przerywany czas pracy – Article 139 of LC); 
task-based workload (zadaniowy czas pracy – Article 140 LC); flexible work time (ruchomy czas pracy – 
Article 1411 LC) and individual timetable (indywidualny czas pracy – Article 142). Until this time, the regular 
rules for all employees have been applied, namely the employer may specify (which means that they may 
refuse the request of an employee) flexible working-time patterns (Article 1401 LC) or, at the employee's 
written request, define an individual working-time pattern (Article 142 LC); adopt a reduced working-week 
system (Article 142 LC); and adopt a working-time system that includes work only on Fridays, Saturdays, 
Sundays and holidays.  

261  As provided in the Act of 4 November 2016 on support for pregnant women and their families, the so-called 

Pro-life Law (Za życiem). (JoL 2016 Item 1860). 

262  In the case of disabilities, such possibility exists also after the child reaches the age of 18 (Article 1421(3) 

LC). 

263  Which means that the employer may refuse the employee’s request for a flexible working-time pattern 
(Article 1401 LC); for an individual working-time pattern (Article 142 LC); for a reduced working-week 
system, which includes work only on Fridays, Saturdays, Sundays and holidays. (Article 142 LC).  

86 

 
 
 
 
 
employee’s  consent,  exceed  eight  hours  a  day.  Also,  such  worker  retains  the  right  to 
remuneration for the time s/he did not work as a result of a reduction in her/his working 
time for that reason (Article 148(1) LC). The LC does not guarantee the right to return to 
prior working arrangements. There are also no measures aimed at encouraging fathers to 
make use of the right or possibility to adjust working time patterns. 

5.10.3 Right to work from home or remotely  

The Labour Code in Article 676 provides a legal right to work from home or other remote 
locations, however, only with respect to workers with children with certificated disabilities, 
listed in Article 1421 LC. In such a case the request should in principle be recognised by 
the employer; a refusal is possible if the acceptance of the request is impossible due to 
the organisation of work or  the type of work performed by an employee. The  employer 
shall inform the employee about the reasons for the refusal. Here, the law does not provide 
any additional eligibility criteria except those listed in Article 1421 LC. The employee with 
a child with disabilities is entitled to this right even after the child turns 18 (Article 1421(3) 
LC).  There are no measures in place  specifically to  encourage men to make use  of this 
legal right.  

In  relation  to  other  employees  with  children,  general  rules  apply.  Since  2010,  the 
possibility  of  work  from  home  is  explicitly  provided  for  by  the  LC  (Chapter  IIb  of  LC). 
Although  it  is  not  considered  to  be  a  legal  right  of  a  worker  to  work  from  home  or 
remotely,264 Article 677(3) LC states that, as far as possible, the employer shall consider 
the  employee’s  request  to  perform  work  in  the  form  of  telework.  If  the  proposal  of 
‘telework’ comes from the employer, the employee may refuse it. Article 679 LC states the 
lack of consent for performance of telework or cessation of telework cannot constitute a 
decision justifying the termination of the employment contract by the employer. 

Worth noting is the content of Article 6715 of the LC, which states (in Paragraph 1) that 
teleworkers may not be treated less favourably  – with  regard to the  establishment and 
dissolution  of  the  employment  relationship,  conditions  of  employment,  promotion  and 
access to training in order to improve professional qualifications – than other employees 
employed at the same or similar work, taking into account the differences related to the 
conditions of work in the form of telework. According to Paragraph 2 of this provision, an 
employee may not be discriminated against in any way for taking up teleworking work or 
for refusing to take up such work.  

Under  the  Anti-Crisis  Shield  1.0  and  Anti-Crisis  Shield  4.0,  specific  remote  working 
arrangements  were  introduced  that  remain  in  force  during  the  period  of  pandemic 
emergency  or  state  of  pandemic  declared  due  to  COVID-19  and  for  three  months  after 
their revocation, in order to counter COVID-19.  

Pursuant to Article 3 of the Act of 2 March 2020 on special solutions related to preventing, 
counteracting  and  combating  COVID-19,  other  infectious  diseases  and  crisis  situations 
caused  by  them  (JoL  of  2020,  item  1842,  as  amended,  hereinafter  referred  to  as  Anti-
Crisis  Shield  1.0)  an  employer  may  order  an  employee  to  perform  remote  work  for  a 
specified period of time. The condition is that the employee has the skills and the technical 
and local capabilities to perform such work and that the type of work permits it. The tools 
and  materials  needed  to  carry  out  the  remote  work  and  the  logistical  support  for  the 
remote  work  shall  be  provided  by  the  employer.  At  the  direction  of  the  employer,  an 
employee  performing  remote  work  is  obliged  to  keep  records  of  the  work  performed, 
including  in  particular  a  description  of  the  work,  as  well  as  the  date  and  time  of  its 

264  The terms and conditions of telework applied by an employer shall be defined in an agreement between the 

employer and a trade union, and if more than one trade union is active in the establishment, in an 
agreement between the employer and those trade unions (Article 676 LC). During the employment, any 
change of the terms and conditions of work to those referred to in Article 675 may be introduced by 
agreement of the parties at the employer's or employee's initiative. 

87 

 
 
 
 
 
 
 
 
performance.  The  employer  may  at  any  time  revoke  an  order  to  perform  remote  work. 
There is no symmetrical entitlement of an employee to request the performance of remote 
work.  

5.10.4 Other legal rights to flexible working arrangements 

The possibility of using the so-called equivalent working time provided for in Article 135 
of the Labour Code does not constitute, according to this provision, an employee's right 
but an employer's right related to the specificity of a given job.  

5.10.5 Case law  

No case law regarding flexible working time arrangements in relation to parents wanting 
to reconcile their work with family life has been identified.  

5.11 Evaluation of implementation 

Comparison of the legal status in Poland in the scope discussed herein is difficult because 
not all types of leave related to childbirth and upbringing, provided for in the Labour Code, 
are equivalent to the EU law. In Poland, the multiplication of the various types of leave 
related  to  the  birth  and  care  of  a  child  is  subject  to  criticism,  each  having  different 
consequences  and  a  different  form,  without  any  indication  of  the  purpose  that  such 
differentiation is supposed to serve.265 This applies in particular to two types of leave under 
Polish  law  relating  to  the  upbringing  of  a  child  (parental  and  childcare),  which  seem  to 
correspond  functionally  to  one  type  of  parental  leave  within  the  meaning  of 
Directive 2010/18/EU.  

Comparing the provisions of EU directives 92/85 EEC, 2010/18/EU and 2006/54/EC with 
the  solutions  adopted  in  Poland,  it  should  be  emphasised  that  the  scope  of  health 
protection  and  durability  of  the  employment  relationship  of  pregnant  women  and 
breastfeeding mothers corresponds to the scope of protection provided for in EU law, and 
even exceeds it, taking into account, inter alia, the absolute nature of the ban on  night-
time  employment  of  pregnant  women,  or  mothers  who  are  breastfeeding  a  child,  and 
employment  in  other  work  that  is  prohibited  for  these  categories  of  workers  under  the 
threat of quasi penal sanctions (provided for contraventions).  

As  far  as  the  scope  of  rights  related  to  birth  and  childcare  provided  for  in  the  Polish 
legislation  is  concerned,  it  is  in  many  respects  broader  than  the  minimum  standard 
specified in the EU directives. This applies in particular to the duration of individual leave 
(maternity and parental leave) and/or the associated long period of payment of the benefit 
(generally up to 52 weeks). This generally positive assessment of parental rights in Poland 
does  not  mean  that  all  EU  legislation  has  been  properly  implemented.  In  particular, 
objections  may  be  raised  to  the  implementation  of  Article  15  of  the  aforementioned 
Directive  2006/54/EC  in  Article  1832  of  the  LC  referring  to  the  remuneration  of  an 
employee returning to work after maternity or parental leave. In contrast to the Directive, 
Article  1832  of  the  LC,  while  speaking  about  ‘remunerations’,  omits  the  words  ‘no  less 
favourable’. Although there is hardly any doubt that the aim of this provision is to take 
account of any increases in remunerations, it should be borne in mind that wage cuts may 
also  have  been  made  during  the  leave  period.  The  Polish  legislator  did  not  take  such  a 
situation into account.266  

265  Admittedly the number of different types of leave has been reduced by the Law of 24 July 2015, which 
entered into force on 2 January 2016. However, the current regulation remains very unclear in certain 
points.  
Cf.: Godlewska Bujok, B., ‘Uprawnienia związane z rodzicielstwem. Nowa odsłona.’ (Parenthood-related 
rights. A new construction) Praca i Zabezpieczenie Społeczne 2015 No. 9. 

266  Attention is drawn to this issue by Sobczyk, A. (in) Kodeks Pracy. Komentarz (Labour Code. Commentary) 

ed. Sobczyk, A., 2nd edition, C.H. Beck, Warszawa 2015, p. 777.  

88 

 
 
 
 
 
 
 
 
 
 
 
Currently not all requirements resulting from Directive 2010/18 have been implemented 
into  the  Polish  legal  system.267  Most  of  the  criticism  refers  to  the  lack  of  proper 
implementation  of  Clause  2  Section  1  of  this  Directive.  Formally,  this  provision  was 
implemented  in  Article  186(4)  of  the  Labour  Code,  which  refers  to  1  month's  non-
transferable leave, which must be taken by one of the parents. However, this reservation 
does not apply to paid parental leave (urlop rodzicielski) referred to in Articles 1821a to 
1821c of the LC. This leave lasts at least 32 weeks and can be divided between the parents. 
However,  there  is  no  mechanism  for  motivating  the  father  to  take  advantage  of  this 
possibility  in  practice,  under  threat  of  losing  a  certain  part  of  the  leave.  The  two-week 
paternity  leave  provided  for  in  Article  1823  of  the  LC,  which  may  be  taken  only  by  the 
child's father, does not seem to be a sufficient solution.  

It  is  worth  noting  that  Clause  5(2)  of  the  Annex  to  Directive  2010/18/EU  has  not  been 
properly  implemented  either.  The  Polish  provision  of  Article  186(4)  LC,  concerning  the 
wage rights of parents returning from parental leave, is a true carbon copy of only the first 
sentence of this clause,268 and the second sentence is omitted269 Despite this, the Supreme 
Court  interprets  this  provision  in  accordance  with  the  intention  of  the  EU  legislator, 
recognising  that  any  favourable  changes  in  remuneration  that  occurred  before  the 
employee's return to work should also apply to him/her. 

Additionally,  the  Polish  law,  which  implements  the  EU  regulation  dealing  with  flexible 
working time arrangements, is not fully satisfactory. On the one hand, the introduction in 
2015 (in force since 2 January 2016) of the possibility of combining  paid parental leave 
(urlop rodzicielski) with up to half-time work for the same employer (Article 1821e LC), as 
well as an extension of the length of parental leave in such a situation (Article 1821f LC) 
and, in addition, the introduction of the options of reduced working patterns for parents 
entitled  to  childcare  leave  (urlop  wychowawczy  –  1867  LC)270  should  be  positively 
evaluated. On the other hand, the regulation introduced to the Labour Code in 2018, which 
restricts  special  opportunities  to  adjust  working  time  patterns  only  to  the  parents  of 
children with disabilities, is not satisfactory.271  

5.12 Remaining issues 

In 2020, a number of specific work-life balance solutions have been introduced under the 
so-called Anti-Crisis Shields, remaining in force during the period of pandemic emergency 
or  state  of  pandemic  declared  due  to  COVID-19  and  for  three  months  after  their 
cancellation, in order to counteract COVID-19. The two most significant solutions are the 
introduction  of  the  right  of  an  employer  to  commission  an  employee  to  work  remotely 

267  The First President of the Supreme Court, in his opinion about the draft law adjusting the Polish Labour 

Code to Directive 2010/18, considered that this situation is not compliant with the Directive because if a 
Member State grants rights to leave exceeding the minimum length required by EU law, this means that EU 
regulations also apply to the part of these rights that exceeds this minimum. Compare: Opinion of 20 
December 2012 to the draft law. Parliamentary Document No. 909, p. 3.  

268  According to this provision, the rights acquired or in the process of being acquired by the worker on the 
date on which parental leave starts shall be maintained as they stand until the end of parental leave.  

269  According to this sentence: ‘At the end of parental leave, these rights, including any changes … shall apply’. 
270  Godlewska-Bujok, B., ‘Implementacja dyrektywy 2010/18/UE dotyczącej urlopu rodzicielskiego’ 

(Implementation of Directive 2010/18/EU on parental leave) Prawo Europejskie w Praktyce 2013 December 
pp. 52-53. 

271  It should be remembered that on 27 March 2015, the former President submitted to the Parliament a draft 

law amending the Labour Code and some other laws, in which he proposed flexible working time 
arrangements for all parents as was recommended by the European Commission in 2014 (Parliamentary 
document no. 3288, available at: http://www.sejm.gov.pl/sejm7.nsf/PrzebiegProc.xsp?nr=3288). This draft 
has been adopted. According to the draft law, the employer would be obliged to accept a respective request 
of the employee, justified by ‘family obligations’, unless it would not be possible for the work organisation 
or the type of work performed by the employee. The employer would also be obliged to inform the worker 
in writing of the reasons for the rejection of the request, but only in enterprises employing at least 20 
workers. Those amendments were dropped during the parliamentary debate. 

89 

 
 
 
 
 
 
 
(more  on  this  in  Paragraph  5.10.3)  and  the  introduction  of  the  right  to  an  additional 
childcare allowance in the event of being unable to provide childcare.  

The Anti-Crisis Shield 1.0 introduced the right to an additional care allowance, amounting 
to 80 % of the allowance base, in the event of the closure of a nursery, children’s club, 
kindergarten,  school  or  other  institution  attended  by  a  child,  or  the  inability  to  provide 
care by a nanny or daycare provider, due to the COVID-19 pandemic. This allowance could 
be  received until the specified deadline, by the insured person who decided to suspend 
work  due  to  the  need  to  personally  look  after  a  child  under  eight.  The  additional  care 
allowance was payable despite the re-opening of the above facilities, if the insured person 
decided to continue to perform care personally (Article 4 of the Act of 2/03/2020 on special 
solutions related to the prevention and combating of COVID-19, other infectious diseases 
and  crisis  situations  caused  by  them,  JoL  of  2020,  item  374  as  amended).  It  may  be 
suspected (although no research results are available yet) that the obligation to care for 
dependent children over the age of eight – at the expense of work – was carried out mainly 
by women. Also, the provision referring to the possibility of receiving the allowance even 
when the care institutions were re-opened, could translate into more frequent resignation 
by women from work, in order to intensify care activities at home.  

90 

 
 
6 

Occupational social security schemes (Chapter 2 of Directive 2006/54) 

6.1  General (legal) context 

6.1.1  Surveys  and  reports  on  the  practical  difficulties  linked  to  occupational  and/or 

statutory social security issues 

Comprehensive  surveys  regarding  occupational  security  schemes  in  particular  were  not 
identified.  

In  statistical  information  related  to  the  use  of  Occupational  Pension  Schemes  (as 
introduced by the Law of 20 April 2004 on Occupational Pension Schemes – hereafter Law 
on  PPE)  the  rare  use  of  the  possibility  to  arrange  such  pension  schemes  and  the  low 
number  of  participants  among  employees  is  underlined,  even  though  the  number  of 
participating employers is rising. For instance, in 2012 in such programmes, around 110 
employers and 360 000 workers participated, and in the following years, the number of 
participating employers raised and oscillated between 900 and 1 000, but in these years 
the number of PPE participants did not exceed 400 000 employees.272 This results from 
the  fact  that  only  rich  firms  can  afford  such  programmes,  and  that  Poles  are  rather 
reluctant to consent to  additional ‘deductions’ from their  wages, which may result from 
the low level of public confidence in state and political institutions, as well as from the lack 
of particular incentives to additional insurances.273 It is indicated that tax deductions could 
be an effective incentive.274 One of the obstacles is the relatively lengthy administrative 
process  related  to  the  creation  of  occupational  pension  schemes.275  Another  concern 
relates to lack of promotional activities, such as information brochures. In order to take 
advantage of particular solutions, one has to know that they exist in the first place.276 The 
situation  in  2017  seems  not  to  have  changed  since  2012,  according  to  the  information 
from the Financial Supervision Authority (Komisja Nadzoru Finansowego – KNF), which is 
competent for the registration of PPE programmes; up to the end of April 2017, there were 
only 6 motions pending from companies, regarding the creation of such a scheme, among 
which  4  had  already  been  lodged  in  2016  and  in  this  year,  only  48  new  schemes  were 
registered in the PPE.277 

The situation in numbers improved in 2018, after adoption on 4 October 2018 of the Law 
on Employee Capital Schemes (Pracownicze Plany Kapitałowe – PPK) (JoL 2018 Item 2215; 
hereafter: PPK Act), schemes which are supposed to supplement the current occupational 
pension scheme (Pracownicze Programy Emerytalne – PPE). This new option (in force from 
1  January  2019),  aimed  at  increasing  the  number  of  options,  additional  to  statutory 
pensions’  insurances,  has  the  same  function  as  occupational  security  schemes  in  the 
understanding of EU Law. 

Since the adoption of the Law on KPP, i.e. in the period from 4 October 2018 to 18 February 
2019, the KNF has received a total of 353 applications, including 254 applications for entry 
into the register of the newly created PPE and 154 applications for registering of changes 

272  See: http://www.polskieradio.pl/42/259/Artykul/1005787,Dlaczego-Pracownicze-Programy-Emerytalne-nie-
wypalily-w-Polsce; http://www.polskieradio.pl/42/4393/Artykul/1440261,Poszukiwane-firmy-zapewniajace-
Pracownicze-Programy-Emerytalne. 

273  http://www.polskieradio.pl/42/259/Artykul/1005787,Dlaczego-Pracownicze-Programy-Emerytalne-nie-

wypalily-w-Polsce. 

274  They could have the form of progressive reliefs, where people earning less would qualify for higher relief 

and higher supplement from the State, than those earning more. 

275  In 2014, the average time of processing an application in the register administered by the Financial 

Supervisory Authority (KNF) amounted to 17 days, if there were no inconsistencies. If corrections were 
necessary, this period increased to 42 days. 

276  http://www.polskieradio.pl/42/4393/Artykul/1440261. 
277  Niejasna przyszłość PPE (Pracowniczych Programów Emerytalnych) (The Unclear Future of Occupational 
Social Security Schemes) http://www.rp.pl/Moja-Emerytura/304239943-Niejasna-przyszlosc-PPE.html. 

91 

 
 
 
 
 
 
  
 
in existing PPE programmes.278 The latter applications concern increasing the contributions 
to  3.5  %  so  that  the  PPE  meets  the  requirement  for  exemption  from  the  obligation  to 
establish a PPK.279 

The increase of the number of PPE registrations resulted from the fact that the employers 
have to choose one from the two following options: to create the new form of compulsory 
employee capital plan (PPK) or to register their company in an existing voluntary employee 
retirement plan (PPE). Since there was no clarity as to what PPK will mean for employers 
in practice, in order to avoid the creation of a PPK, employers have chosen rather to apply 
for the already well-known social security scheme in the form of PPE, which has contributed 
to this spectacular growth of their total number countrywide.280  

6.1.2  Other issues related to gender equality and social security 

As  mentioned,  the  current  occupational  pension  scheme  (Pracownicze  Programy 
Emerytalne,  PPE)  was  supplemented  by  adoption  on  4  October  2018  of  the  Law  on 
Employee Capital Schemes (PPK). By introducing PPK Law, the intention was to provide 
additional savings  for future pensioners after they  reach the age of 60. When someone 
reaches the age of 60, he or she will be able to withdraw the accumulated funds at once, 
although then 75 % of them will be taxed. If this amount is paid in monthly instalments 
for 10 years, it will not be taxed.  

While there is no reference to EU law in the PPK Law, the reasoning of the draft indicates 
that the introduction of a uniform age for men and women for entitlement to payments is 
justified in particular by EU requirements for voluntary retirement provision.281  

The main objective of this new option is to introduce a system which will be more popular 
among employers than the existing PPE and will cover as many people as possible (the 
prognosis is that it should target approximately 11.5 million employees). The universality 
of the PPK system is guaranteed by the obligation for employers to enter into a programme 
if  they  employ  one  or  more  persons  (Article  7).  The  PPK  programme  will  be  run  by 
Investment Fund Companies, Insurance Companies and Public Pension Companies, which 
will be chosen by the employer. The basic contribution financed by a PPK member may 
amount to between 2 % and 4 % of the salary. On the other hand, the employer would 
pay an additional premium from 1.5 % to 4 % of the salary. As a result, the maximum 
contribution to the PPK in the case  of  one employee  could amount to 8 %. In addition, 
there would be an annual budgetary surcharge of PLN 240 (EUR 53) and the State would 
give an additional ‘welcome fee’ of PLN 200 (EUR 44). 

The largest companies employing more than 250 people will start to apply the provisions 
of the Act as of 1 July 2019. Entities employing at least 50 persons – from 1 January 2020 
and companies employing at least 20 persons – from 1 July 2020. Other entities will have 

278  By way of comparison, only 48 new schemes were registered in the PPE register in 2017. 

https://www.parkiet.com/Pracownicze-plany-kapitalowe-PPK/302219981-Firmy-uciekaja-przed-PPK.html.  

279  The Act indicates that the EPP employer's management of certain parameters will constitute a basis for 

such an entity not to create an employee's capital plan. According to the planned regulations, employers 
who will conduct (as of the date of entry into force of the obligation to apply the provisions of the PSC Act 
to them) PPE on the basic contribution paid in the amount of at least 3.5 % and meeting the criterion of 
participation in the EPP of at least 25 % of the employed, will not be obliged to form PPK. 

280  Kołek, A., Wojewódka, M., PPE w przeddzień wejścia w życie PPK – praktyka rynkowa (PPE on the eve of 

the entry into force of the PSCs – market practice), Instytut Emerytalny, September 2018 
http://www.instytutemerytalny.pl/wp-content/uploads/2018/09/PPE-w-przeddzie%C5%84-
wej%C5%9Bcia-w-%C5%BCycie-PPK-Wrzesie%C5%84-2018.pdf and Nowe programy pracownicze w 2018 
r. (New employees’ programmes in 2018), Instytut Emerytalny, 
http://kadry.infor.pl/wiadomosci/758800,Nowe-pracownicze-programy-emerytalne-od-2018-r.html. 
281  It has been mentioned in Directive 2006/54/EC of the European Parliament and of the Council of 5 July 

2006 on the implementation of the principle of equal opportunities and equal treatment of men and women 
in matters of employment and occupation (recast) which implements the principle of equal treatment in 
relation to, inter alia, voluntary social security. Draft law. Sejm Print No. 2811 
http://www.sejm.gov.pl/Sejm8.nsf/druk.xsp?nr=2811. 

92 

 
 
 
 
 
 
 
 
to apply the Act from 1 January 2021. The latter deadline also applies to entities belonging 
to the public finance sector.  

6.1.3  Political and societal debate and pending legislative proposals 

There was no public debate before the introduction of the PPK scheme. However, when 
the Law was passed, some critical opinions were presented. It was argued that after 20 
years of operating the PPE in practice, it can be said that this solution has proved its worth 
and the first effects of long-term savings within the PPE are encouraging. One may wonder 
whether, in this situation, the introduction of new forms of employee insurance such PPK 
was advisable, or whether, after bad experiences with compulsory social insurance in the 
form of capital insurance, one should aim rather at extending the scope of application of 
PPE.282  

6.2  Direct and indirect discrimination  

The Law of 20 April 2004 on Occupational Pension Schemes (PPE) does not provide for a 
special  prohibition  to  discriminate  (either  directly  or  indirectly,  on  the  grounds  of  sex). 
Also, the Anti-Discrimination Law does not refer explicitly to occupational social security 
schemes, but only to social security in general (Article 4(4b) and Article 6). With regard 
to  occupational  social  security  schemes  it  seems  certain  that  the  general  prohibition  of 
discrimination,  provided  for  in  Article  32(2)  of  the  Constitution,283  may  be  applied.284 
However, there are doubts about the possibility and possible scope of application of other 
anti-discrimination laws. However, the constitutional protection, in general, is considered 
not to be sufficient since it is very difficult to design formally correct claim based only on 
the Constitution. 

A clear solution to this problem was included in Article 23.1 of the Law on PPK. Besides 
providing  that  the  participation  in  the  PPK  is  fully  voluntary  for  employees  (while  the 
employer has an obligation to have one occupational security scheme: either PPE or PPK), 
this  provision  explicitly  states  that  Article  183a  Sections  1-5  of  the  Labour  Code,  which 
speaks, among other things, about direct and indirect discrimination, applies accordingly. 
The obligation of equal treatment set out in these provisions applies to an employed person 
also regardless of whether or not he/she is a participant in the PPK. However, the Law on 
PPK  does  not  mention  the  possibility  of  applying  prescriptive  provisions  of  the  Anti-
Discrimination  Law,  although  its  personal  scope  indicates  that  it  does  not  only  apply  to 
persons related to an employer by an employment contract. 

6.3  Personal scope 

According  to  Article  2(2)  of  the  Law  on  Occupational  Pension  Schemes  (PPE),  which 
provides for definitions of the terms that are used, the term ‘employees’ which the system 
applies, means:  

‘persons  employed  in  full-time  or  part-time  work,  on  the  basis  of  a  contract  of 
employment, appointment, election, nomination, cooperative employment contract, 
a person employed under a contract as a result of appointment or election to a body 
representing a legal person and a member of an agricultural production cooperative 
or other cooperative of farmers’.  

282  Kołek, A., Wojewódka, M., PPE w przeddzień wejścia w życie PPK – praktyka rynkowa (PPE on the eve of 
the entry into force of the PSCs – market practice), Instytut Emerytalny, September 2018. Available at: 
http://www.instytutemerytalny.pl/wp-content/uploads/2018/09/PPE-w-przeddzie%C5%84-
wej%C5%9Bcia-w-%C5%BCycie-PPK-Wrzesie%C5%84-2018.pdf. 

283  This provision reads as follows: ‘No one shall be discriminated against in political, social or economic life for 

any reason whatsoever’. 

284  Pursuant to Article 8(2) of the Constitution its provisions shall apply directly, unless the Constitution 

provides otherwise.  

93 

 
 
 
 
 
 
 
 
 
 
The  Law  of  10  December  2018285  which  amended  this  Article  in  addition  states  that  ‘if 
provided for in the company contract’ (umowa zakładowa) the Law mentioned above shall 
apply  also  to:  a)  a  person  performing  work  on  the  basis  of  a  tolling  agreement  (praca 
nakładcza)  or  b)  a  natural  person  performing  work  on  the  basis  of  an  agency  contract 
(umowa agencyjna) or a contract of mandate (umowa zlecenia) or any other contract of 
services (umowa o świadczenie usług) or a member of the supervisory board remunerated 
for performing this function, to whom the provisions  of Law  related to  employees shall, 
apply mutatis mutandis (Article 2(25)).  

The  employment  should  be  (in  both  cases:  full-time  or  part-time)  for  a  period  not  less 
than  three  months  unless  it  is  otherwise  stated  in  the  company  (enterprise)  contract 
(Article 5(1) of the above Law).286 Participants in this scheme also include natural persons 
conducting an economic activity (self-employed persons), entitled expressis verbis, as well 
as  partners  of  commercial  law  companies,  mentioned  in  this  law,  who  are  subject  to 
mandatory  retirement  and  disability  insurance  and  to  whom  the  rules  apply  which  are 
applicable  to  employees  (Article  5(4)  and  (5)  of  the  Law  on  Occupational  Pension 
Schemes).  The  aforementioned  Law  explicitly  prohibits  a  person  older  than  70  to  enter 
into the system for the first time (Article 5(1a)). However, the continuation of participation 
in the scheme by people older than 70 is allowed, even if they are receiving a retirement 
pension from the mandatory social security system. This right is granted to them for as 
long  as  they  remain  employees.287  The  law  does  not  explicitly  refer  to  persons  whose 
activity  is  interrupted  by  illness,  maternity,  accident  or  involuntary  unemployment  and 
persons seeking employment or to retired and disabled workers, but it seems that as long 
as  they  remain  employees,  they  are  not  excluded  from  the  programme.  The  personal 
scope of the Polish regulations seems to correspond with the Directive.  

The personal scope of the Law on PPK is similarly defined. It speaks generally of employed 
persons.  However,  according  to  Article  2(1)  (point  18),  this  category  includes  both 
employees  covered  by  the  protection  of  the  Labour  Code  as  well  as  natural  persons 
performing imposed work, work on the basis of a contract of mandate, for a specific  job 
or  another  contract  for  the  provision  of  services,  members  of  supervisory  boards 
remunerated  for  the  performance  of  these  functions  and  members  of  all  kinds  of 
agricultural production/services cooperatives 

6.4  Material scope 

The material scope of occupational social security schemes in Poland seems to be more 
restrictive  than  what  is  provided  for  in  Directive  2006/547.  The  Law  on  Occupational 
Pension Schemes does not explicitly specify what particular risks referred to in Article 7 of 
the Directive it covers. Nevertheless, the name of this Law (including the term ‘pensions’), 
as well as information included in handbooks regarding this security system, underline its 
supplementary role for the general pension system. With respect to Article 6 of this law, 
one  can  also  state  that  protection  from  the  risk  of  death  is  included.  This  provision, 
speaking  of  forms  in  which  such  programmes  may  be  introduced,  mentions  not  only 
retirement funds, but also contracts of group life insurance of employees with  a private 
insurance  institution,  in  the  form  of  group  life  insurance  in  an  insurance  capital  fund 

285  The added content of Article 2 entered into force on 1 January 2019. JoL 2018 Item 2215.  
286  However, the company agreement may not provide for more than 3 years of service with a given employer, 

entitling participation in the programme (Article 5(1c) of the Law on Occupational Pension Schemes).  

287  Such prohibition (with the above-mentioned exception) – as explained by Krajewski – is a logical 

consequence of the regulation contained in Article 42(1) point 3 of the Law on Occupational Pensions, 
according to which the payment of the money accumulated on the account of the programme has to be 
realised – as a rule – at the moment the employee reaches the age of 70 years. Therefore, this prohibition 
cannot be considered as age discrimination. Krajewski, M., (2014), Pracownicze programy emerytalne. 
Problematyka prawna. (Occupational pension schemes. Legal aspects.) Doctoral thesis, p. 228 
http://dspace.uni.lodz.pl:8080/xmlui/bitstream/handle/11089/11378/Doktorat%20nr%203.pdf?sequence=
1&isAllowed=y. 

94 

 
 
 
 
 
 
(Article  6(9)).  Such  contract  may  also  include  accident  and  sickness  insurance  if  they 
supplement the life insurance (Article 6(13)). 

The  PPK  Act  explicitly  refers  only  to  pensions,  but  it  also  states  that  it  may  apply  to 
disability  situations  (where  an  employee  is  totally  unable  to  work  or  has  a  recognised 
certain degree of disability).  

6.5  Exclusions 

The PPE Act of 2004 on occupational pension schemes, as well as the PPK Law, does not 
include a provision transposing Article 8 of the Directive, and therefore no exclusions are 
permittable. The limitations related to the form of employment contract and the minimum 
time limits for employment are the only legal requirements for participation in the system. 
The law excludes the possibility of access to the programme for an employee older than 
70 (Article 5(1a)).288 According to Article 5(6) of the Law, the company agreement may 
not  provide  for  any  conditions  for  employee  participation  in  the  programme  other  than 
those set out in the law. 

The PPK Act additionally prohibits conclusion of an agreement on running a PPK on behalf 
and for the benefit of an employed person who is 70 years of age (or older, on the first 
day of employment (Article 15(1)). In the case of a person between 55 and 70 years of 
age, the agreement on running the PPK is concluded only upon his/her application and on 
condition  that  he/she  meets  the  3-month  criterion  of  the  period  of  employment. 
(Article 15(2) and (3) I.2 and Article 16). 

6.6  Laws  and  case  law  falling  under  the  examples  of  sex  discrimination 

mentioned in Article 9 of Directive 2006/54 

No case law falling under the examples of sex discrimination could be identified. It is worth 
mentioning that by adjusting the provisions of the Law on occupational pension schemes 
(PPE) to EU standards, the requirements regarding the age of male and female employees 
who may access the programme have been equalised. 

6.7  Actuarial factors 

It  is  explicitly  prohibited  to  use  sex  as  an  actuarial  factor.  Article  34  of  the  Law  of  11 
September  2015  on  insurance  activity  and  reinsurance289  currently  provides  that  the 
application of the criterion of sex in calculating insurance premiums and benefits cannot 
result in differentiation of premiums and benefits of particular persons. It is also prohibited 
to differentiate premiums and benefits, as well as financial services connected with them, 
with regard to pregnancy and maternity. The latter prohibition applies to life insurance, 
dowry  insurance,  childcare,  accident  pension  insurance,  sickness  insurance,  as  well  as 
other personal and material insurances.  

6.8  Difficulties 

No difficulties in application of provisions related to occupational social security schemes 
are identified.  

6.9  Evaluation of implementation 

The  evaluation  of  the  implementation  of  EU  provisions  mentioned  in  chapter  2  of  the 
Directive 2006/54/EC is hindered by the fact that neither the PPE nor the PPK Act make, 

288  It might be added that the difference in the retirement age for men and women was removed from 

occupational security schemes in 2004.  

289  Consolidated text JoL 2019, Item 381. This law replaced the Law of 22 May 2003.  

95 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
with one exception, any direct reference to the provisions contained therein. This exception 
concerns the requirement of an equal retirement age for women and men.290  

6.10 Remaining issues 

There are no remaining issues to discuss.  

290  This issue is of great importance in Poland, as this age was also differentiated initially in the PPE Act, and it 

was only after some time that it became equal. Moreover, in 2016, the Act on the social insurance system 
returned to the differentiated retirement age of women. 

96 

 
 
 
 
7 

Statutory schemes of social security (Directive 79/7/EEC) 

7.1  General (legal) context 

7.1.1  Surveys and reports on the practical difficulties linked to statutory schemes of social 

security (Directive 79/7/EEC) 

Current  data  on  the  structure  of  social  insurance  (including  gender  categories)  can  be 
found in the publications of the Social Insurance Institution (ZUS). Some of the information 
is published periodically, other publications are occasional. The most up-to-date data was 
collected  in  the  Review  of  the  pension  system  2016,  which  consists  of  the  ZUS  Green 
Paper291 and the White Paper.292 The Green Paper, which gives a comprehensive diagnosis 
of the Polish pension system, contains an analysis of conditions and an assessment of the 
functioning of pension insurance (including OFE), pension provision, as well as solutions 
that make up the voluntary part of the pension system (Individual Retirement Accounts 
(called  IKE)293  or  Individual  Retirement  Security  Accounts  pension  (called  IKZE).294  The 
comprehensive  diagnosis  contained  in  the  Green  Paper  became  the  basis  for  the 
preparation of the White Paper,295 in which the recommendation of reforms was presented.  

The data contained in the Green Paper shows that in December 2015, 41 % of men and 
59 %  of  women  received  their  pension.  It  is  worth  noting  that  the  average  age  of 
pensioners has been increasing for years. In December 1995 it was 65 years old (women) 
and 67 years old (men), in December 2015 – 69.8 years old (women) and 71.5 years old 
(men).  Women's  pensions  are  significantly  lower  than  men's  pensions.  The  average 
pension  payment  from  the  Social  Insurance  Institution  in  December  2015  amounted  to 
PLN 2 116.45 (EUR 467), which constituted 62.1 % of the average salary (reduced by the 
obligatory  social  insurance  contribution).  The  women’s  average  pension  is  69  %  of  the 
average men’s pension. Women on average get PLN 1 784.07 (EUR 173) (i.e. 52.3 % of 
the overall average salary in Poland) and men get on average PLN 2 601.04 (EUR 574) 
(i.e.  76.3  %  of  the  average  salary).  Most  men  (106 900)  received  a  pension  of 
PLN 2 043.51  (EUR  451).  In  the  female  population,  most  women  (232 200)  received  a 
pension of PLN 1 472.92 (EUR 325).296  

Practical inequalities between women and men in the field of social security have been the 
subject of many studies, the most important of which seems to be the survey carried out 
by Janina Petelczyc and Paulina Roicka, the results of which were published in the Report 
‘The situation of women in the pension system’, which constitutes an attempt to diagnose 
the  causes  of  inequalities  and  present  recommendations  for  changes.297  The  Report 

291  Zielona Księga ZUS, Przegląd systemu emerytalnego 2016 – Bezpieczeństwo dzięki odpowiedzialności (ZUS 
Green Paper, Review of the Pension System 2016 – Safety through Responsibility) 2016, available at: 
https://www.zus.pl/documents/10182/167526/Zielona+ksi%C4%99ga+przegl%C4%85du+emerytalnego+
2016/d9596eda-c57f-4218-bac4-c8c2470b5a12. 

292  Biała Księga ZUS, Przegląd systemu emerytalnego 2016 – Bezpieczeństwo dzięki odpowiedzialności (ZUS 
White Paper, Review of the Pension System 2016 – Safety through Responsibility) 2016, available at: 
https://www.zus.pl/documents/10182/167526/Bia%C5%82a+ksi%C4%99ga+przegl%C4%85du+emerytal
nego+2016/68de004b-47f9-47f6-b548-466da05e0bcc.  

293  Indywidualne Konta Emerytalne (IKE). 
294  Indywidualne Konta Zabezpieczenia Emerytalnego (IKZE). 
295  Biała Księga ZUS, Przegląd systemu emerytalnego 2016 – Bezpieczeństwo dzięki odpowiedzialności 2016 
(ZUS White Paper, Review of the Pension System 2016 – Safety through Responsibility) available at: 
https://www.zus.pl/documents/10182/167526/Bia%C5%82a+ksi%C4%99ga+przegl%C4%85du+emerytal
nego+2016/68de004b-47f9-47f6-b548-466da05e0bcc.  

296  Zielona Księga ZUS, Przegląd systemu emerytalnego 2016 – Bezpieczeństwo dzięki odpowiedzialności (ZUS 
Green Paper, Review of the Pension System 2016 – Safety through Responsibility) 2016, available at: 
https://www.zus.pl/documents/10182/167526/Zielona+ksi%C4%99ga+przegl%C4%85du+emerytalnego+
2016/d9596eda-c57f-4218-bac4-c8c2470b5a12. 

297  Petelczyc, J., Roicka, P., Sytuacja kobiet w systemie emerytalnym (Situation of women in the pension 
system), 2015, Publication created within the framework of the project Gender (in) Equality in Law, 
implemented by the Institute of Public Affairs with the financial support of the Citizens for Democracy 
Programme. Available at: https://www.isp.org.pl/pl/publikacje/sytuacja-kobiet-w-systemie-emerytalnym.  

97 

 
 
 
 
 
 
 
stresses that the consequences of ongoing social and economic changes lead to a reduction 
in  the  replacement  rate,  i.e.  the  relation  between  the  amount  of  earnings  and  future 
pension  benefits.  Currently  it  is  about  50  %,  but  in  20-30  years'  time  the  pension  will 
amount  to  about  20-30  %  of  the  salary,  due  to  the  changes  in  construction  of  social 
security  schemes,  together  with  increasing  longevity.  Taking  into  account  the  weaker 
position of women in the pension system, this may lead to a situation in which the risk of 
poverty and social exclusion of women will additionally increase. The risk of poverty and 
social exclusion among women over 65 is already 4 percentage points higher on average 
than for men in the over-65 age group. With each year above 65, the gap increases and 
at the age of 75 the risk of poverty and social exclusion among men and women differs by 
more  than  6  percentage  points.  The  increasing  gap  is  due,  on  the  one  hand,  to  lower 
benefits  and,  on  the  other,  to  the  fact  that  older  women  often  live  in  a  single-person 
household and therefore have no one to share the expenditure with. The report therefore 
stresses that, regardless of the need to introduce changes aimed at increasing retirement 
provision for the general population, the legislator should pay particular attention to the 
position of women in this system. 

The  following  factors  of  indirect  discrimination  in  the  area  of  social  security  were 
distinguished in the research:  

• 

• 

• 

• 

• 

transition to a system based on the defined contribution (DC) method, which makes 
the amount of future benefit dependent on the amount of paid contributions;  
special situation of women in the labour market, which consists of such elements as: 
disproportions  in  earnings,  i.e.  the  wage  gap;298  more  frequent  part-time  work; 
persistent lower professional activity of women and higher unemployment rate – in 
the third quarter of 2015, the professional activity rate was 48.6 % for women and 
65.0 % for men, while the unemployment rate was 7.5 % and 6.7 %, respectively;  
legal regulations resulting in a worse situation of women in the pension system: not 
all  periods  of  childcare  are  treated  as  insurance  periods,  i.e.  contribution  periods. 
Frequent use of breaks in employment to provide care may translate into the right 
to a pension or its amount; 
usually lower basis for pension insurance contributions of persons caring for a family 
member; 
low pension contributions paid by the state budget for persons resigning from work 
in order to provide care for a family member, which are not related to the earnings 
of this person, means that this compensation does not have a significant impact on 
the amount of future pension benefit.299 

As emphasised by the authors of the research, historical and cultural factors are the source 
of the observed inequalities between women and men in terms of social security, i.e. the 
shaping  of  insurance  systems  based  on  the  concept  of  a  male  breadwinner,  working 
without  interruptions  in  his  career  on  the  basis  of  an  employment  contract,  as  well  as 
cultural  and  mental  conditions  which  translate  into  the  burden  of  women's  care 
responsibilities  towards  children  and  the  elderly  (with  an  underdeveloped  network  of 
institutional care). The report stresses that most of the provisions discriminating against 
one gender have been removed from the pension system, therefore the emphasis should 

298  The reason for lower average earnings for women is that they are more likely to work part-time, most often 
as a result of combining professional and family roles. In Poland, twice as many women as men work part-
time, as a result, men work on average 4 hours a week longer than women. This is one of the factors 
causing women's pension benefits to be, on average, lower than men's pension benefits.  

299  Zielona Księga ZUS, Przegląd systemu emerytalnego 2016 – Bezpieczeństwo dzięki odpowiedzialności (ZUS 
Green Paper, Review of the Pension System 2016 – Safety through Responsibility) 2016, available at: 
https://www.zus.pl/documents/10182/167526/Zielona+ksi%C4%99ga+przegl%C4%85du+emerytalnego+
2016/d9596eda-c57f-4218-bac4-c8c2470b5a12.  

299  Zielona Księga ZUS, Przegląd systemu emerytalnego 2016 – Bezpieczeństwo dzięki odpowiedzialności (ZUS 
Green Paper, Review of the Pension System 2016 – Safety through Responsibility) 2016, available at: 
https://www.zus.pl/documents/10182/167526/Zielona+ksi%C4%99ga+przegl%C4%85du+emerytalnego+
2016/d9596eda-c57f-4218-bac4-c8c2470b5a12.  

98 

 
 
 
 
 
be increased on the fight against indirect discrimination, i.e. the worse situation of women 
in the labour market and their much higher burden of family responsibilities. Equality in 
the pension system requires equality at every stage and in every area of life. The pension 
system is, to a large extent, just a litmus test, showing the still diverse situation of women 
and men in the labour market.  

An additional factor that may potentially strengthen the unequal position of women and 
men  in  the  social  security  system  is  the  impact  of  the  new  solution  introduced  by  the 
government, the so-called 500+. The Green Paper of ZUS stressed the existence of a link 
between the introduction of the ‘500+’ programme and resignation from work by women 
who earn little and are entitled to the benefit. It was also pointed out that in the long-term 
perspective, problems may be expected with the return to work of women who have been 
out  of  the  labour  market  for  a  long  period  of  time.  These  trends  may  lead  to  further 
inequalities in pension provision.300 

The  Green  Paper  also  mentions  the  risks  stemming  from  the  solution  introduced  in  the 
new pension system, where seniority is not a condition for receiving a pension. In the case 
of persons who have acquired the right to a pension without reaching the required seniority 
(currently 22 years for women, 25 years for men), the benefit received is not increased to 
the level of the lowest pension. Thus, it may be extremely low. As predicted, in December 
2015,  the  majority  of  persons  receiving  such  a  pension  were  women  –  constituting  as 
much as 95 % of the entire group.301  

7.1.2  Other relevant issues  

No other relevant issues were identified.  

7.1.3  Overview of national acts 

The Polish legislator when reforming the system of social security, gave it a common and 
unified character, in the sense that one legal act of 1998302 covered not only employees, 
but also workers performing activity on other grounds than on the basis of an employment 
contract,  whose  pecuniary  benefits  paid  from  the  social  security  were  previous  to  the 
reform set forth in separate legal acts.303 

Currently only the situation of persons performing agricultural activities is governed by a 
separate act of 1990.304 However, despite the fact that all consecutive governments have 
envisaged the need for harmonisation of old age benefits of farmers with the benefits of 

300  Zielona Księga ZUS, Przegląd systemu emerytalnego 2016 – Bezpieczeństwo dzięki odpowiedzialności (ZUS 
Green Paper, Review of the Pension System 2016 – Safety through Responsibility) 2016, available at: 
https://www.zus.pl/documents/10182/167526/Zielona+ksi%C4%99ga+przegl%C4%85du+emerytalnego+
2016/d9596eda-c57f-4218-bac4-c8c2470b5a12.  

301  Petelczyc, J., Roicka, P., Sytuacja kobiet w systemie emerytalnym (The situation of women in the pension 

system) 2015, available at: https://www.isp.org.pl/pl/publikacje/sytuacja-kobiet-w-systemie-emerytalnym.  
302  Act on the System of Social Security, dated 13 October 1998, JoL 1998 No. 137 Item 887, with subsequent 

amendments. 

303  In 2005, the number of the insured persons in ZUS was around 13 130 000, which, with a total population 

in Poland of circa 38 157 000, makes circa 34.5 %. In 2005, expenditure on pensions accounted for 89.1 % 
of total ZUS expenditure and amounted to PLN 99 000 million (EUR 23 571 million for about 7.2 million 
people. Payment of cash benefits from the different funds was as follows: old age pension fund – 
PLN 61 017 million (EUR 14 527 million), disability and survivors’ pension fund – PLN 37 265 million 
(EUR 8 872 million), sickness fund – PLN 4 949 million (EUR 1 178 million), work accident fund about 416 
million (EUR 99 million). ‘Social Insurance in Poland. Information, facts’. ZUS Social Insurance Institution. 
Warsaw 2006, p. 19. Currently circa 12 million people are insured under the Polish second (capital) pillar. 
In 2008, the first women shall receive the retirement benefits under this scheme, p. 25. 

304  The situation of persons performing agricultural activity is governed by the Act on the Social Security of 

Farmers dated 20 December 1990. Uniform text – JoL 1998, No. 7 Item 25, with subsequent amendments. 
The situation of persons performing activity outside of agriculture is governed by the Act on the System of 
Social Security, dated 13 October 1998, JoL 1998 No. 137 Item 887, with subsequent amendments. 

99 

 
 
 
 
 
 
 
 
 
other  working  people,  this  system  still  remains  unchanged,  as  any  attempts  to  change 
face fierce opposition from the farmers.  

The old-age benefit granted according to the current system of statutory social security is 
paid  out  of  one,  two  or  three  sources,  called  pillars.  Pension  schemes  of  pillar  one  and 
pillar  two  may  be  considered  as  being  part  of  the  European  first  pillar  target  by 
Directive 79/7/EEC.  The  specific  feature  of  the  Polish  social  security  scheme  is  that  the 
date of birth constitutes a criterion of whether a person is covered by the old (first pillar) 
or by the new (second pillar) system.305  

The first pillar, similarly to the system before the reform of 1998, is based on a so-called 
intra-generation agreement, i.e. the repartition system, in which money paid by persons 
presently working is transferred to retired persons through the reformed Social Security 
Agency (ZUS). However, in contrast to how it was regulated under the previous system, 
the  amount  of  the  old-age  pension  paid  out  from  this  pillar  shall  depend,  to  a  certain 
extent,306 on the sum of paid contributions, saved in an individual account, re-evaluated 
every year. In this system, the contribution to social security is paid in one sum, without 
specification  of  particular  risks.  It  is  not  invested.  Therefore,  the  situation  on  the 
investment  market  shall  not  directly  influence  the  amount  of  future  old-age  pension.  It 
will be paid lifelong, but the contributions recorded in the 1st pillar  cannot be inherited, 
even when the insured person dies before retirement. 

The second part of old-age pensions shall come from the open retirement fund (2nd pillar, 
called ‘capital or funded pension pillar’). In this pillar, part of the contributions paid by the 
insured person is invested within the open private retirement fund, administered by the 
Universal Retirement Society or, since 2017, may be entirely administered by the Social 
Security Agency (ZUS) instead, if the insured person so wishes. Every contribution paid to 
the  open  fund  will  be  calculated  in  settlement  units,  the  value  of  which  will  evolve  in 
concordance with the situation on the financial market. The sum of units multiplied by the 
actual price of the unit shall constitute the insured person’s capital, on which the amount 
of this person’s old-age pension shall depend. The capital deposited in the open retirement 
fund  shall  increase  with  the  increase  of  the  number  of  settlement  units  on  the  insured 
person’s  account  in  result  of  the  influx  of  new  contributions  and  increase  of  the  unit’s 
price.307 As opposed to the 1st pillar, the means deposited on the account of 2nd pillars 
may  be  inherited  (under  the  condition  that  the  insured  person  dies  before  he  or  she 
retires).308 In both pillars the legislator introduced an enumerative catalogue of persons, 
who must or may voluntarily be covered by particular insurances.309 It has to be mentioned 

305  The new system is obligatory for persons born after 31 December 1968, which means that the contribution 
paid from their income is shared between the 1st and 2nd pillar. Persons born before 1 January 1949, as 
well as the persons working exclusively in agriculture, remain only in the old system. Persons who were 
less than 15 years from the retirement age on the date of the implementation of the reform were excluded 
from the new retirement system, because new rules could cause a significant decrease of their benefits. 
Persons born between 31 December 1948 and 1 January 1969 could choose by the end of 1999, whether to 
allocate the whole contribution to the 1st pillar or whether to share it between the 1st and 2nd pillar. 
306  The system provides maximum pension, which may not be higher than 100 % of the basis of assessment 

(and the basis of assessment may not be higher than 250 % of the base amount, which is equal to average 
earning reduced by social insurance contributions deducted from the insured persons in the preceding 
calendar year). In 2007, it amounted to PLN 2 059.92 (EUR 478) (Monitor Prawny (Legal Monitor) No. 12, 
Item 126), which gives a maximum old age pension of about PLN 5 147 (EUR 1 197) monthly. In 2018, the 
base amount was PLN 3 731 (EUR 867.60). The minimum retirement age was PLN 1 000 (EUR 232.50) 
gross. The number of people with pensions below the minimum is growing year by year. The state provides 
for the payment of a minimum benefit to such persons, but on condition that they prove that they have 
worked for 20 years (for women) and 25 years (for men). 

307  However, potential decrease of the unit’s price may cause the decrease of capital, even below the sum of 

contributions paid on the open fund. 

308  In the case of divorce of spouses, the contributions gathered within the 2nd pillar may be divided between 

spouses (possibly by the court). 

309  Groups of persons covered by compulsory pension insurance include: employees, members of agricultural 
production cooperatives, freelancers, persons carrying out activity outside of agriculture, clergy, members 
of Parliament receiving remuneration, recipients of unemployment benefits, persons in the course of 
childcare leave or recipients of maternity allowances. Compulsory sickness insurance covers persons 

100 

 
 
 
 
 
 
that another specific feature of the Polish social security system, reformed since 1999, is 
the separation of sickness insurance310 from health insurance.311 

7.1.4  Political and societal debate and pending legislative proposals 

The political and societal debate related to social security concentrates mainly on the issue 
of the different retirement age for women and men. There is currently no public debate on 
potential legal reform in this area. 

7.2  Implementation of the principle of equal treatment for men and women in 

matters of social security 

The principle of equal treatment of men and women in matters of social security is provided 
for in Article 2a of the Law on the System of Social Insurance; Article 4(4)(b) of the Anti-
Discrimination  Law and Articles 2a and 2b of the Law  of 20 April 2004 on promotion of 
employment, which applies to benefits from social insurance in case of unemployment.  

The Law on the System of Social Insurance establishes the rule of equal treatment of all 
insured,  without  regard  to  sex.312  This  equal  treatment  rule  refers  in  particular  to 
conditions  of  the  obligation  to  calculate  and  transfer  social  insurance  contributions, 
calculate  the  amount  of  benefits,  period  of  payments  and  the  duration  of  the  right  to 
benefits, as elements of the system of social insurances (Article 2a(2)). An insured person 
who believes that the principle of equal treatment has been violated with regard to him or 
her, has the right to claim damages before a court (Article 2a(3)).  

Additionally,  the  Anti-Discrimination  Law  explicitly  provides  in  Article  4(4)(b)  that  the 
horizontal protection enshrined in its provisions also applies to any violation of the principle 
of equal treatment in the access to the social security system. These provisions implement 
Articles 4 to 6 of Directive 79/7/EEC.  

Until  2016,  the  self-employed  persons  insured  within  the  optional  sickness  insurance 
scheme  were  not  entitled  to  sick  child  care  allowances.  By  contrast,  all  employees  (for 
whom sickness insurance is mandatory) were entitled to such paid leave.313 This exclusion, 
although it did not concern only women, was perceived as indirect discrimination based 
on sex, since in practice, women usually take care of sick children.  

As  concerns  sick  child  care  allowances  (mentioned  in  the  first  example),  it  has  already 
been partially amended, following a ruling of The Constitutional Tribunal that found, in the 
judgment  of  6  March  2007  (P  45/06),  the  respective  provision  (Article 32  Paragraph 1 
points 2 and 3 of the Law of 25 June 1999 on payments from social security in case of 
sickness and maternity) partially incompatible with Article 2 (the principle of rule of law) 
and Article 32 Paragraph 2 (non-discrimination clause) of the Polish Constitution of 1997. 

subject to compulsory pension insurance being employees, members of agricultural production cooperatives 
and rural circles cooperatives, persons undergoing substitute military services. The sickness insurance may 
be joined on a voluntary basis by persons covered by compulsory pension insurance who, inter alia: carry 
out activity outside of agriculture, perform work on a basis of civil law mandatory or agency contracts. 
Compulsory work accident insurance covers persons subjected to compulsory pension insurance for 
example: employees, members of cooperatives, persons carrying out activity outside of agriculture and 
persons collaborating with them. Persons covered by compulsory pension insurance may – after its 
cessation – continue it on a voluntary basis.  

310  The sickness insurance provides for the payment of cash benefits in respect of sickness and maternity 
governed by the Law of 25 June 1999 (consolidated text: JoL of 2005 No. 31 Item 267 with further 
amendments).  

311  The health insurance means the system of benefits of the preventive, diagnostic, therapeutic and 

rehabilitative character, financed by public resources. The scope of this system has been determined in the 
Law of 27 August 2004 (JoL 2004 No. 210 Item 2135).  

312  As well as race, ethnic origin, nationality, civil state, and family status. 
313  Those discriminatory provisions applied to circa 1.9 million self-employed persons in Poland, from which 

more than one third are women, Gazeta Prawna, 5 March 2007.  

101 

 
 
 
 
 
 
 
 
 
 
In its reasoning the Tribunal pointed out that the differentiation of the situation of persons 
under sickness insurance, depending on its character (mandatory or optional), is contrary 
to the Constitution; the insured persons paying the same  contributions may  expect the 
same  benefits  regardless  of  whether  the  participation  in  the  system  was  obligatory  or 
optional.  However,  another  appearance  of  different  treatment  of  insured  persons 
depending on whether they participate in the system on an obligatory or optional basis, 
still remained in existence, since the Minister of Work and Social Policy at that time issued 
the  recommendation  that  this  judgment  of  the  Constitutional  Tribunal  should  be 
understood literally, which means that the persons under the optional sickness insurance 
system are not entitled to be paid leave for care of a child under the age of eight in so-
called emergency cases.314  

In 2016 this interpretation was changed and the care allowances in emergency cases are 
now paid to self-employed persons as well.315 The Government may thus be considered to 
have complied with the obligation laid down in Article 5 of Directive 79/7/EEC. In addition, 
it  has  to  be  pointed  out  that  even  though  the  period  of  parental  and  childcare  leave  is 
considered as a contributory period, paid from the State’s Budget, this contribution is paid 
based  on  a  minimum  salary  only,  which  will  influence  the  amount  of  future  old-age 
entitlement. Taking into consideration the fact that the basis of the contributions of self-
employed  persons  (paid  to  ZUS  before  a  period  of  leave)  constitutes,  as  in  the  case  of 
employees, the average monthly income from the last 12 months, such differentiation of 
the situation of insured self-employed persons and employees has no objective justification 
and  may  be  qualified  as  discriminatory  practice.  Bearing  in  mind  that  most  of  the 
beneficiaries of those periods of leave are self-employed women, it may also be considered 
as indirect sex discrimination. 

There are no conditions regarding the affiliation to a scheme or entitlement to statutory 
benefits  which  are  different  for  men  and  women  or  indirectly  puts  one  gender/sex  in  a 
disadvantaged position. 

The law provides for possibilities of earlier retirement for particular groups of employees 
regardless  of  their  sex.  There  are  no  special  possibilities  of  earlier  retirement  only  for 
women.  

7.3  Personal scope 

The  personal  scope  of  the  Law  on  the  system  of  Social  Insurance  corresponds  with 
requirements  of  Article  2  of  Directive  79/7/EEC.  The  reform  of  1998  made  the  system 
more universal and uniform in the sense that the application of the Social Security Law 
was no longer limited to employees, but also covered persons performing work not based 
on an employment relationship (e.g. the self-employed, persons performing work on the 
basis of an agency contract or a contract of mandate, artists, priests, etc.).316 This reform 

314  http://www.zus.pl/default.asp?p=1&id=1&idk=459.  
315  https://zus.pox.pl/zus/zasilek-opiekunczy-a-dzialalnosc-gospodarcza.htm. According to the regulations, the 
insured person is entitled to a benefit for a period of 60 days a year if during this time he or she took care 
of another member of the family, e.g. a sick child or a spouse. Such a care allowance is also granted to 
persons running their own businesses, which allows for a significant reduction in the amount of ZUS 
contributions due. This benefit may be paid even if the child falls ill in the first month of the entrepreneur's 
insurance. The care allowance is granted only if there are no other family members at home who can 
provide care for the child. However, there is an exception to this rule. It applies to the care of a sick child 
up to the age of two years. 

316  Groups of persons covered by compulsory pension insurance include: employees, members of agricultural 
production cooperatives, freelancers, persons carrying out activity outside of agriculture, clergy, members 
of Parliament receiving remuneration, recipients of unemployment benefits, persons in the course of 
childcare leave or recipients of maternity allowances. Compulsory sickness insurance covers persons 
subject to compulsory pension insurance being employees, members of agricultural production cooperatives 
and rural circles cooperatives, persons undergoing substitute military service. The sickness insurance may 
be joined on a voluntary basis by persons covered by compulsory pension insurance who, inter alia: carry 
out activity outside of agriculture, perform work on a basis of civil law mandatory or agency contracts. 

102 

 
 
 
 
 
 
 
 
also included public servants remaining in service relationships in the system.317 The only 
group still to fall outside the scope of this Law are farmers, who are covered by a separate 
Law  of  20  December  1990  on  Social  Insurance  of  Farmers.  However,  it  should  be 
emphasised that the farmers’ insurance system is deemed to be a part of  the statutory 
social  security  system,  hence  the  Directive  79/7/EEC  and  the  equal  treatment  clause 
enshrined in Article 2a of the Law on the System of Social Insurance and Article 4(4)(b) 
of the Anti-Discrimination Law applies to it.  

7.4  Material scope 

All social risks mentioned in Article 3(1) of Directive 79/7/EEC are covered by the Polish 
statutory  social  insurance  system,  which  in  this  respect  seems  to  conform  to  the 
requirements of the Directive. In the current system, contributions covered by the Law on 
the  System  of  Social  Insurance  are  divided  into  the  following  categories:  old-age  and 
disability pensions; sickness and maternity insurance; insurance against accidents at work 
and  occupational  diseases  (Article  1  of  the  above  Law).318  Protection  against 
unemployment  in  the  form  of  benefits  is  paid  from  a  special  Labour  Fund,  where 
contributions transferred by the employers and workers are aggregated, for every salary 
exceeding the minimum salary, provided for in Chapter 15 of the Law of 20 April 2004 on 
promotion of employment. It is also regulated in the Law of 12 March 2004 on Social Aid 
(consolidated  text  in  JoL  2017,  Item  1769,  Article  7(4),  concerning  social  assistance 
granted in the case of unemployment).  

7.5  Exclusions 

An  exception  provided  for  in  Article  7(1)  of  the  Directive  used  to  apply  in  Poland  with 
respect  to  the  retirement  age,  which  was  traditionally  different  for  women  and  men 
(respectively  60  and  65).  This  much  criticised  differentiation  of  the  retirement  age  for 
women and men was still in the process of equalisation,319 when the Law of 16 November 
2016 reinstalled different retirement ages for women (60) and for men (65).320 The same 

Compulsory work accident insurance covers persons subjected to compulsory pension insurance, for 
example: employees, members of cooperatives, persons carrying out activity outside of agriculture and 
persons collaborating with them. Persons covered by compulsory pension insurance may – after its 
cessation – continue it on a voluntary basis. The Polish system of social security does not provide the 
general exclusion of people because they work e.g. in minor employment in non-remunerated employment 
(voluntary jobs). 

317  Such professions as judges and prosecutors are still governed by special regulations.  
318  In respect of old age, the benefits include: the retirement pay (old age pension) and nursing compensatory 

allowance to pensions.  
In respect of sickness and maternity the benefits include: sickness allowance, maternity allowance, care 
allowance, compensatory allowance, and rehabilitation benefit. 
In respect of the long-term incapacity for work the benefits include: disability pension, training pension.  
In respect of death of a breadwinner the benefits include: survivor’s pension and supplementary allowance 
to survivors; pension for complete orphans.  
In respect of accidents at work and occupational diseases the benefits include: lump-sum compensation, 
benefits in respect of sickness long-term incapacity for work and death of a breadwinner, dentist services 
and prophylactic vaccinations, cost of orthopaedic appliances.  
In addition, ZUS pays: social pension, pre-retirement benefits and death grant. 

319  The Law on pensions and disability allowances of 17 December 1998, after amendments introduced in May 
2012 (unified Text JoL 2013 Item 1440 with further amendments) provided that, starting from 2013, the 
retirement age be extended by one month every quarter of the year. This meant that it was planned that 
men would retire at the age of 67 in 2020 and women in 2040. The process of extending the retirement 
age was ceased in 2016. It is worth noting that the change of the retirement age in 2012 raised 
constitutional concerns. However, Article 67 Paragraph 1 of the Constitution does not provide any 
requirements regarding the limits of the retirement age, which means it may be specified in a regular law. 
This was confirmed by the Constitutional Court in its ruling of 7 May 2014, case No. K 43/12. Nevertheless, 
in the author’s opinion, that the Constitutional Tribunal has overlooked the fact that the increase of 
retirement age for both sexes, which should eventually reach the age of 67, could be seen as possible 
gender-based discrimination, since for men, the time of obtaining retirement benefits was only delayed by 
two years, whereas for women this was supposed to be up to seven years. 

320  The Law of 15 November 2016 on amendment of the Law of 17 December 1998 on retirement and 

disabilities benefits from the Social Security Fund (JoL of 2016, pos. 887) and certain other laws, published 
in Jol 2017 Item 38. 

103 

 
 
 
 
 
 
 
 
 
 
 
law introduced an analogical change of retirement age for farmers. The new law came into 
force on 1 October 2017. 

The equalisation of retirement ages was considered as an opportunity in the pension gap 
between the women and men (according to estimations, without equalising the retirement 
age, the old-age pensions of women would be lower by about 50 %). It has to be noted 
that  although  the  different  retirement  ages  had  not  previously  raised  constitutional 
concerns,321 the full bench of the Constitutional Tribunal later found that the increase of 
the  retirement  age  is  constitutional.322  The  question  remains  whether  the  constitutional 
standards of the rule of law also allow abortion of such reforms before their completion 
and before their impact becomes visible. The current parliamentary majority has reverted 
the reform for purely populist reasons (the majority of Poles were against the increase of 
the retirement age). The lowering and differentiation of the retirement age for men and 
women  has  important  practical  consequences  due  to  the  fact  that  the  new  retirement 
scheme (in contrast to the old system) is based on the ground rule that the amount of the 
future  benefit  is  the  direct  derivative  of  the  amount  of  paid  contributions.  People 
demanding the return to the previous differentiated regulations, especially women, do not 
always  understand  that  lowering  the  retirement  age  has  a  significant  influence  on  the 
amount  of  their  future  monthly  benefit,  because  it  will  cause  the  sum  of  accumulated 
contributions  to  be  reduced,  additionally  increased  by  the  extension  of  duration  of  life 
expectation of retired persons. This was among the reasons why the European Commission 
in  2012  recommended  changing  the  retirement  age  according  to  the  longer  life 
expectation, and introducing the equalisation of the retirement age for women and men.323 
The amendments introduced in 2016 are contrary to those recommendations.  

As  a  result  of  criticism  from  the  European  Commission,  which  recommended  initiation 
against Poland the procedure provided for in the Article 7 TEU among other things due to 
the different retirement age of female and male judges in the Law on the common courts 
system, which constitute the violation of Article 157 TFEU and of the 2006/54 Directive,324 
a respective amendment of the Law has been introduced.325 However, the differentiated 
retirement age for academics, which is linked to general system’s retirement regime,326 
although it proved to be discriminatory for women (whose academic careers are usually 
delayed in comparison with their male colleagues),327 still remains.  

Article 3(2) of the Directive provides that family benefits and survivors’ benefits do not fall 
within the scope of the Directive. However, in Poland, the principle of gender equality in 
relation to these benefits has been introduced in practice. All widows and widowers have 
the  right  to  family  pension  under  the  condition  that  they  are  over  50  years  of  age  or 
incapable of work. In the case of death of one of the spouses, 50 % of the contributions 
gathered within the 2nd pillar (funded pension pillar) has to be transferred to the survivor’s 
spouse’s  account.  The  remaining  50  %  are  reimbursed  in  cash  to  the  indicated  person 
(which might be the spouse).  

321  In the ruling, of 15 July 2010, in case No. K 63/07, the Constitutional Tribunal confirmed that different 

retirement ages for women and men were considered in constitutional jurisprudence as so-called privileging 
compensation (affirmative action, preferential treatment), aiming to reduce inequalities with regard to sex. 

322  Ruling of 7 May 2014, case No. K 43/12. 
323  PL || 15.1/ 19.5 || 61.4/ 57.5 ## || 65/60 || 65/60 || (67/67) || 13.5 || CSR 3-(in): WHITE PAPER An 

Agenda for Adequate, Safe and Sustainable Pensions /* COM/2012/055 final L 
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52012DC0055. 

324  https://ec.europa.eu/commission/presscorner/detail/en/IP_17_5367.  
325  Finally, an equal ‘retirement age’ for female and male judges has been in force since 23 May 2018 on the 

basis of the Law of 12 April 2018, amending, among others, the Law on the common courts (JoL 2018 Item 
848).  

326  The Law of 20 July 2018 on higher education and science, in force from 1 October 2018 (JoL) as to 

retirements refers to the Labour Code, which provided for such differentiation.  

327  Which will result in lower pensions (compared to men’s) due to the statistically longer period of careers with 
lower salaries, related to lower scientific degrees. Without higher scientific degree the academic is unable to 
obtain some decision-making positions within the organisational structure of the academic institutions, to 
which is attributed additional remuneration.  

104 

 
 
 
 
 
According to the statistics328 within the population of persons over 50 years of age, more 
than 74 % of women profit from the family pensions and only 9 % of men. Many women 
entitled in a personal capacity to the retirement pay apply for the family pension instead, 
since – as a rule – it is higher than their own expected old-age benefit.  

7.6  Actuarial factors 

In  statutory  social  security  schemes,  sex  is  not  used  as  an  actuarial  factor  which 
determines contributions in individual cases.  

7.7  Difficulties 

There are no specific difficulties in relation to implementation of the Directive 79/7/EEC.  

7.8  Evaluation of implementation 

The provisions of the Law on the system of social security correspond with the provisions 
of the 79/7/EEC Directive.  

7.9  Remaining issues 

On  1  March  2019,  the  Act  of  31  January  2019  on  Supplementary  Parental  Benefit  (JoL 
2019 Item 303), the so-called Mama 4+ Act, came into force, which defines the conditions 
and rules for the payment and financing of this benefit. The purpose of the benefit is to 
provide the necessary means of subsistence for women who have given up employment 
or other gainful activity or have not taken up such activity due to the fact that they have 
at least four children (their own, that of the other spouse, adopted, taken for bringing up 
within  a  foster  family,  with  the  exception  of  professional  foster  care).  This  benefit  may 
exceptionally apply to the father (in the case of death of the mother, abandonment of the 
child and long-term cessation of the mother's raising of the child (Article 3). The amount 
of benefit cannot be higher than the lowest pension (which in 2019 amounts to PLN 1 100 
(EUR 243)). In the case of receiving a pension in an amount lower than the lowest pension, 
the  benefit  is  supplemented  to  the  amount  of  the  lowest  pension  (Article  7).  This  law 
appears to comply with Article 4(2) of the Directive.  

328  National Pensions Strategy. Adequate and Stable Pensions System (2005) and its updating in chapter 3 of 

the ‘National report on strategies for social protection and social inclusion’ (2006).  

105 

 
 
 
 
 
 
 
 
 
  
 
8 

Self-employed  workers  (Directive  2010/41/EU  and  some  relevant 
provisions of the Recast Directive) 

8.1  General (legal) context 

8.1.1  Surveys and reports on the specific difficulties of self-employed workers 

In Poland, self-employment is currently widespread. According to Eurostat data, in 2012 
there were 2.9 million self-employed persons, of which 986 000 were women. 43 % of all 
self-employed persons  worked in agriculture.329 According to research commissioned by 
the European Commission and published in January 2013, 47 % of Poles would prefer to 
be self-employed. This percentage is higher than the European average (37 %).330 Data 
from the Polish part of this research shows that Poles would prefer to be self-employed 
mostly because of the independence and self-fulfilment associated with this status (65 %). 
On the other hand, 27 % of Poles do not consider self-employment, because they do not 
have the necessary means and the current situation does not favour starting such business 
activity. 39 % fear bankruptcy and 41 % are discouraged by the potential irregularity of 
income.331  Other  research  indicated  handicaps  such  as  administrative  difficulties  and 
barriers, and the lack of good business ideas.332  

Self-employment  in  Poland  is  associated  with  a  specialised  professional  activity  (e.g.  in 
the IT sector, publishing, advertising, as well as legal and financial services). At the turn 
of the century, creating your  own company was frequently seen as a  means to  combat 
unemployment.  A  significant  number  of  women  took  advantage  of  such  opportunities, 
encouraged by special programmes and loans.333 There is no data as to how many of those 
companies set up by women have survived.  

329  Comparison table available at: https://ec.europa.eu/eurostat/statistics-

explained/index.php?title=File:Self_employed_status,_2012.png&oldid=130616. This data relies on data 
from the National Business Registry Number (REGON). It is uncertain, however, how many of the 
companies listed in this register actively conduct commercial activities and how many of these 
entrepreneurs are own-account workers, without employing others. As a result, the actual number of ‘self-
employed’ persons is difficult to determine precisely, as such a group is not recorded separately in the 
statistics. It is estimated that they constitute between 60 % and 70 % of the general number of registered 
enterprises. In 2012, 1.3 million single-person companies were registered in the Social Security Institution 
(ZUS). This is also the officially estimated number of self-employed persons.  
Cf. further: Piechowiak, Ł., Czy to koniec samozatrudnienia w Polsce (Is this the end of self-employment in 
Poland), available at: https://www.bankier.pl/wiadomosc/Czy-to-koniec-samozatrudnienia-w-Polsce-
2466703.html. 

330  Flash Eurobarometer FL354 Entrepreneurship in the EU and beyond provides data for the first six months of 
2012. Cf.: https://data.europa.eu/euodp/data/dataset/S1024_354/resource/1f6c0b18-3222-4b8e-9c2d-
16e7c5792b7c. According to other research, this number was even higher (73 %), with a European average 
of 69 %. See further: Report from research conducted in November 2012 by Amway Europe, with 
cooperation of the Center of Entrepreneurship of the Ludvik Maximilian University in Munich and the GFK 
Institute Raport na temat przedsiębiorczości w Polsce w 2012 roku (2012 Report on the entrepreneurship in 
Poland in 2012) available in Polish at: 
http://news.amway.pl/files/2012/11/Przedsi%C4%99biorczo%C5%9B%C4%87-i-m%C5%82odzi-
przedsi%C4%99biorcy.pdf. 

331  https://data.europa.eu/euodp/data/dataset/S1024_354/resource/1f6c0b18-3222-4b8e-9c2d-

16e7c5792b7c.  

332  Cf.: research conducted in November 2012 by Amway Europe, with cooperation of the Center of 

Entrepreneurship of the Ludvik Maximilian University in Munich and the GFK Institute. Raport na temat 
przedsiębiorczości w Polsce w 2012 roku (Report on the entrepreneurship in Poland in 2012) available in 
Polish at: http://news.amway.pl/files/2012/11/Przedsi%C4%99biorczo%C5%9B%C4%87-i-
m%C5%82odzi-przedsi%C4%99biorcy.pdf. 

333  Lisowska, E., Przedsiębiorczość kobiet w Polsce na tle krajów Europy Środkowej i Wschodniej 

(Entrepreneurship of woman in comparison to East and Central European Countries). Monografie i 
Opracowania nr 494, Szkoła Główna Handlowa, Warszawa 2001. Compare also Samozatrudnienie (Self- 
employment). Report prepared by the Polish Agency for Entrepreneurs Development (PARP), Warszawa 
2004. 

106 

 
 
 
 
 
 
 
 
A current problem in Poland is the large scale of forced self-employment.334 A significant 
number  of  self-employed  persons  were  given  the  choice  by  their  employers  to  either 
change to self-employment or be made  redundant. The main goal  of such  form  of self-
employment was to free the employers from burdens and complications associated with 
contract-based  employment.  In  such  cases,  self-employed  persons  work  just  as  if  they 
were  employed  in  the  company,  with  the  difference,  however,  that  they  pay  their  own 
insurance contributions. Also, they do not benefit from all protection measures provided 
for in the Labour Code. However, since 2016, the LC’s provisions dealing with special rights 
related to childbirth and childcare, as well as the standard safety nets apply to them. Such 
economically dependent self-employment is frequently referred to as superficial, since it 
is often not based on the genuinely free choice of the employee.335 In this context it should 
be noted that, due to tax reasons, self-employment is not in general beneficial for persons 
previously  employed  and  continuing  the  work  for  the  same  employer.  It  has  some 
advantages only for persons with high incomes.336 Since 2019 there have been continuing 
reports about the soon to be introduced changes in the Labour Code.337 The draft of the 
new Labour Code prepared by the Ministry of Family, Labour and Social Policy is supposed 
to  contain  new  regulations  protecting  the  rights  of  a  certain  category  of  self-employed 
persons338 regarding minimum salary, leave, sick pay, prevention of contract termination 
during e.g. pregnancy. At the same time, for this category of self-employed persons, there 
is also a plan to introduce a contribution for obligatory social insurance, on the basis of 
principles applied to all employees, which, in the case of self-employed persons with high 
income, will mean a much higher obligatory burden paid for ZUS. Still no draft law  has 
been  submitted  to  the  Sejm  and  no  information  is  to  be  found  on  the  webpage  of  the 
Ministry.  

As  already  mentioned,  the  category  of  self-employed  persons  is  not  reflected  in  official 
statistical data. The Statistical Yearbook of the General Statistical Office (GUS) recognises 
the  general  category  of  employment  (employed  persons),339  which  includes  employers 
who  own  farms  or  enterprises  outside  agriculture  (together  with  cooperating  family 
members),  and  ‘own-account’  workers  (e.g.  lawyers  and  artists).  These  two  categories 

334  In the literature this is referred to as economically dependent self-employment. See Musiała, A., Prawna 
problematyka świadczenia pracy przez samozatrudnionego ekonomicznie zależnego (Legal problems of 
performing work by economically dependent self-employed persons), Monitor Prawa Pracy 2014 No. 2. 
335  See Samozatrudnienie w odwrocie: Ubyło jednoosobowych firm (The number of one-person enterprises has 

decreased). Gazeta Prawna.pl of 28 February 2013 available at: 
http://serwisy.gazetaprawna.pl/msp/artykuly/685965,samozatrudnienie_w_odwrocie_ubylo_jednoosobowy
ch_firm.html and Rączka, K., Samo-zatrudnienie. Przyczyny zjawiska i jego skutki w sferze zatrudnienia 
(Self-employment. Background of the phenomenon and its consequences in the sphere of employment). 
Conference materials publication. Office of the Commissioner for Human Rights, Warszawa 2005. pp. 17-
18. This was also mentioned by the Supreme Court in its rulings from 12 February 2013 (II UK 184/12) and 
from 10 April 2013 (II UZP 2/13). The court noted with approval the existence of provisions aimed at 
preventing situations in which employers would force workers to dissolve their employment contracts and 
change to so-called self-employment, i.e. take up a commercial activity that would be identical to their 
previous task as workers based on the employment contract.  

336  It allows them to pay lower taxes (the flat-rate tax amounts to 19 %, whereas the regular income tax for 

persons with high incomes may even amount to 35 %).  

337  There is huge media coverage on this subject; here are just some links as examples: 

https://strefabiznesu.pl/nowy-kodeks-pracy-4052020-zmiana-kodeksu-pracy-bedzie-na-pewno-jeszcze-w-
tym-roku-wydluzy-urlopy-zlikwiduje-samozatrudnienie/ar/c3-14825496; 
https://poznan.naszemiasto.pl/dluzsze-urlopy-samozatrudnienie-zlikwidowane-to-juz-pewne/ar/c3-
7680305; https://superbiz.se.pl/wiadomosci/rewolucja-w-kodeksie-pracy-smieciowki-do-kosza-nowy-tryb-
pracy-rzad-planuje-polacy-chca-wiecej-aa-574W-GH1h-R9j4.html; https://infogliwice.pl/zmiany-w-
kodeksie-pracy-zaplanowane-na-2020-rok/. 

339  In Polish: ‘pracujący’. The data regarding employment concerns persons performing work and providing 

earnings or income, and include e.g.: 1) employees hired on the basis of an employment contract (labour 
contract, posting, appointment, or election) or service relation; 2) employers or own account workers. This 
second category, which corresponds with the notion of self-employed persons, covers 1) owners, co-
owners, or leaseholders of private farms in agriculture (including contributing family members) working in 
private farms; b) owners and co-owners of entities conducting economic activity outside agriculture 
(including contributing family workers); and c) other self-employed persons who practise learned 
professions. See Rocznik Statyczny RP (Statistical Yearbook of the Republic of Poland) 2012, Głowny Urząd 
Statystyczny (Central Statistical Office; further referred to as GUS), Warsaw LXXII, at p. 218. 

107 

 
 
 
 
correspond with the notion of self-employment. In the years 2011 and 2012, the overall 
number of self-employed persons amounted to 3 735 000, among which 1 611 700 were 
women.  From  the  whole  group,  2  216  200  were  employed  on  private  farms  in  the 
agricultural sector.340 According to GUS data, the number of employers and own-account 
workers  in  2005-2012  showed  a  gradual  increase,  although  there  is  no  data  allowing 
determination of which of the two combined groups this phenomenon actually relates to. 
In the last two years the number of self-employed persons has decreased.341 For example, 
the  number  of  farmers  decreased  by  33  000  in  the  previous  year.342  In  the  sphere  of 
economically  dependent  self-employment,  this  is  explained  by  the  fact  that  employers, 
when facing the need for further reduction of labour costs, often first terminate cooperation 
with  self-employed  persons.  Another  significant  reason  for  the  decrease  in  self-
employment  is  structural  changes  in  agriculture.  Economists  indicate  that  decreasing 
subsidies from the Labour Fund and smaller funds coming from the European Union have 
also negatively influenced the number of self-employed persons. For many self-employed 
persons, the necessity to pay higher social insurance contributions after the first two years 
of self-employment is a barrier that is difficult to overcome. 

8.1.2  Other issues 

The author does not see any other relevant issues in this context. 

8.1.3  Overview of national acts 

From the legal perspective, until 2018, the status of self-employed persons did not differ 
from the situation of other commercial entities. On 30 April 2018, the main legal document 
regulating  non-agricultural  commercial  activity  entered  into  force,  that  is,  the  Law  of 
Entrepreneurs (Prawo przedsiębiorców), JoL 2018 Item 646, replacing the previous Law 
on Freedom of Economic Activity.343 

The legal status of farmers is regulated in various legal Acts. The matter of social insurance 
of persons conducting agricultural activity is regulated in the Law of 20 December 1990 
on the social security system of farmers. 

Directive  86/613  was  implemented  by  the  Anti-Discrimination  Law.344  Article  1751  LC 
introduced by the Act of 24 July 2015 (JoL of 2015, pos. 1268) – and amendments to the 
provisions of Section 8 of the LC (on the rights of employees related to parenthood) related 
to its introduction – may be considered as implementation of Article 8 of Directive 2010/41 
with regard to childbirth-related leave in the case of a self-employed person carrying out 
non-agricultural activities. All the rights provided for in this section are now also applicable 
to  persons  who  are  not  employees,  but  who  are  subject  to  social  insurance  in  case  of 
sickness and maternity according to the Act of 13 October 1998 on the social insurance 
system and the Act of 25 June 1999 on pecuniary benefits from social insurance in case 
of sickness and maternity.  

Formally,  the  aforementioned  Act  amending  the  LC  does  not  refer  to  the 
Directive 2010/41, although in fact it does lead to changes adapting the provisions of the 

340  See Rocznik Statyczny RP (Statistical Yearbook of the Republic of Poland) 2012. Głowny Urząd Statystyczny 

(Central Statistical Office; further referred to as GUS). Warszawa LXXII, p. 227. 

341  This is one of the strongest decreases among EU countries. Cf.: Badania aktywności ekonomicznej ludności 

(research on economic activity of the population) BAEL, http://www.stat.gov.pl?cpsd/rde/xbcr/gus. 

342  Polkowski, W., Coraz mniej pracujących na własny rachunek (Fewer and fewer people working on their own 
account) Rzeczpospolita 17 April 2013., see also https://archiwum.rp.pl/artykul/1186474-Coraz-mniej-
pracujacych-na-wlasny-rachunek.html. 

343  Already appealed Law of 2 July 2004, JoL 2004 No. 173 Item 1807 (Ustawa o swobodzie działalności 

gospodarczej). 

344  This law was criticised, inter alia, because the legislators seem to have neglected the fact (in the law as well 
as in the reasoning) that, at the time of its adoption, Directive 2010/41 (which repealed Directive 86/613) 
was already in force.  

108 

 
 
 
 
 
 
 
 
 
LC to the requirements provided for in Article 8 thereof. The lack of such a reference should 
nevertheless be considered as not fulfilling the obligation stipulated in Article 16(1) of the 
Directive, requiring the implementing provisions to contain a reference to the Directive.  

The Farmers' Social Security Scheme Act has been in force since 1990.345 Pursuant to this 
Act,  maternity  allowance  is  granted  to  a  person  subject  to  pension  insurance  in  KRUS 
automatically  or  upon  request  (with  the  exception  of  persons  subject  only  to  accident, 
sickness or maternity insurance upon request). From 1 January 2016, no sickness benefit 
is due for the period of receiving maternity allowance. 

8.1.4  Political and societal debate and pending legislative proposals 

The issue  of a separate regulation  of  social insurance for farmers, which contains more 
favourable  regulations  than  in  the  case  of  insurance  for  self-employed  persons  working 
outside  agriculture,  is  the  subject  of  constant  discussion.  Intense  discussions  were  also 
held in 2016 in connection with the change in the rules for granting maternity benefits, 
which  consists  of  making  their  amount  dependent  on  the  length  of  time  of  payment  of 
contributions for voluntary (in their case) sickness and maternity insurance.  

8.2  Implementation of Directive 2010/41/EU 

In  the  Act  of  6  March  2018,  the  Law  of  Entrepreneurs,  there  is  only  the  reference  to 
Directive  2006/123/EC  of  the  European  Parliament  and  of  the  Council  of  12  December 
2006 on services in the internal market. No reference to Union law is made in the Act on 
Insurance for Farmers and Their Families. 

8.3  Personal scope 

8.3.1  Scope 

The  personal  scope  of  Polish  regulations  generally  corresponds  with  the  categories  of 
workers listed in Article 2 of the 2010/41/EU Directive.  

8.3.2  Definitions 

Polish  legislation  does  not  have  an  evident  and  common  definition  of  self-employment. 
This  term,  however,  is  used  to  describe  work  activities  performed  individually  or  for 
commercial entities, based on grounds other than a labour contract.  

The definition nearest to self-employment is that of an entrepreneur. It exists in various 
legal  acts  and  varies  depending  on  the  goal  of  those  regulations.  The  most  general 
definition is included in the Civil Code (Article 431), also being very similar to the definition 
included in the 2018 Law of Entrepreneurs. According to Article 4(1) of the latter Law, an 
entrepreneur is a natural person, legal person and/or organisational entity without legal 
personality,  on  which  the  special  law  confers  legal  capacity,  pursuing  the  economic 
activity.  Partners  in  a  civil  law  partnership  (companies)  are  also  considered  as 
entrepreneurs, as far as their economic activity is concerned (Article 4(2) of the Law). An 
economic activity is an organised profit-making activity carried out in its own name and 
on a continuous basis (Article 3).346 This definition covers ‘micro, small and average size 
entrepreneurs’.  

345  Law on the social security system of farmers of 20 December 1990 (Consolidated text JoL 2019 Item 220 

and Item 303). The changes in this Act, in force since 1 January 2016, concerning maternity benefits, were 
introduced by the Act of 24 July 2015 amending the Act on family benefits and certain other acts (Journal 
of Laws of 2015 Item 1217).  

346  The economic activity is not a business activity performed by a natural person whose income due from this 
activity does not exceed in any month 50 % of the minimum wage (Article 5(1)) of the Act of 2018. The 
provisions of the Act do not apply to farmers in the field of, inter alia, cultivation and rearing in agriculture 

109 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
The  definition  of  self-employed  workers  within  the  meaning  of  Article  2  of 
Directive 2010/41 EC also corresponds to the concept of a farmer within the meaning of 
the Act on Social Security for Farmers and their Families. It follows from  Article 6(1) of 
the Act that a farmer is understood as an adult natural person who lives and conducts on 
the  territory  of  the  Republic  of  Poland,  personally  and  on  his  own  account,  agricultural 
activity347 on the agricultural enterprise held by him, including activity within a group of 
agricultural producers, as well as a person who has used the land of the agricultural holding 
he runs for afforestation.  

8.3.3  Categorisation and coverage  

All self-employed workers are considered to be part of the same category, but some issues 
in the agricultural sector are regulated separately and partially differently (e.g. taxes and 
social security). Life partners as such are not explicitly recognised in Polish law. However, 
similar notions are in use, which may partially correspond with the notion of life partner 
in the meaning of Article (2) of the Directive 2010/41 EC.  

The 2018 Law of Entrepreneurs does not even indirectly refer to spouses of self-employed 
workers.  However,  the  Law  on  the  system  of  statutory  social  security  provides  for  the 
same protection mechanisms for almost all social and professional groups, including self-
employed workers and persons collaborating with them (Article 6(2), Point 5 of the Law 
on  statutory  social  security).  The  category  of  persons  collaborating  with  self-employed 
includes not only the spouse, but also other persons (children, adopted children; parents, 
including  step-  and  adoptive  parents)  (Article  6(11)  of  the  Law  on  statutory  social 
security). 

The  Law  on  the  social  security  system  of  farmers  of  1990  applies  both  to  farmers 
themselves and to members of their household working with them, including their spouses. 
According to this Act, a household member is a person over 16 years of age who stays 
with the farmer in a common household or lives in the area of his or her arable farm or in 
a close neighbourhood, and in addition he or she works on this arable farm on a regular 
basis and is not connected with the farmer by an employment relationship (Article 6 point2 
of the Law on the social security system of farmers of 1990).  

8.3.4  Recognition of life partners 

The Polish legislation regarding workers does not refer explicitly to ‘life partners’, although 
the definitions of ‘householder’ within the meaning of the legislation regarding farmers and 
their  ‘collaborators’,  applicable  in  relation  to  those  self-employed  outside  agriculture, 
overlap with this concept. 

8.4  Material scope 

8.4.1  Implementation of Article 4 of Directive 2010/41/EU 

The  2018  Law  of  Entrepreneurs  does  not  contain  an  implementation  of  Article  4  of 
Directive 2010/41/EC. This Law only generally stipulates that the taking up,  pursuit and 
termination of a business is free for everyone on equal terms (Article 2). The Law further 
states that an entrepreneur may take any action except those that are prohibited by law 
and  may  be  required  to  behave  in  a  particular  way  only  under  the  law  (Article  8).  The 
entrepreneur  conducts  a  business  activity  in  accordance  with  the  principles  of  fair 
competition, respect for good manners and legitimate interests of other entrepreneurs and 
consumers, as well as respect for and protection of human rights and freedoms (Article 9).  

and the provision of services in the field of agritourism (Article 6). The rights of these entrepreneurs are 
guarded by a special Ombudsman (Article 16). 

347  Agricultural activity is understood as activity in the field of plant or animal production, including 

horticultural, fruit, bee-keeping and fish production (Article 6(3) of the Act on social insurance for farmers). 

110 

 
 
 
 
 
 
 
 
 
 
 
Also,  the  Law  on  social  insurance  for  farmers  does  not  transpose  Article  4  of 
Directive 2010/41 EU. 

Article 3(5) of the Anti-Discrimination Law may be considered to have transposed Article 4 
of  the  Directive.  This  Law,  however,  transposes  various  equality  directives,  including 
86/613 and 2006/54, and therefore the wording of this provision is more general than that 
of  Article  4,  regarding  self-employment.  The  Anti-Discrimination  Law  specifies  in 
Articles 4(2)  and  8(2)  that  it  is  applicable  to  conditions  of  undertaking  and  performing 
commercial and professional activity, especially with regard to Labour Code- or Civil Code- 
based  employment.  This  provision  may  apply  both  to  entrepreneurs  and  to  farmers  as 
self-employed persons.  

8.4.2  Material scope 

The material scope of Polish regulation relating to equal treatment in self-employment in 
the Anti-Discrimination Law is more restricted than specified in Article 4 of the Directive. 
Namely, there is no prohibition on discrimination with regard to equipment or extending 
business activities. Also, it does not explicitly protect from discrimination with regard to 
terminating commercial activity. The issue of whether self-employed persons, in the event 
of  direct  or  indirect  discrimination,  harassment  or  sexual  harassment  experienced  with 
regard to the equipment or extension of business activities, will benefit from the horizontal 
protection provided for by the Anti-Discrimination Law, depends on the interpretation by 
courts of the terms ‘conditions of undertaking and performing (...) activity’. 

8.5  Positive action 

Although  the  Anti-Discrimination  Law  provides  in  Article  11  for  the  possibility  of  taking 
positive action in order  to prevent unequal treatment or align disadvantages  relating to 
equal treatment, currently no such actions have been identified. In the years 2008-2012, 
positive actions were taken in the form of micro loans for unemployed persons opening 
small businesses, in particular for women conducting commercial activities. As such, the 
fact that a special Ombudsman has been appointed to protect the interests of small- and 
medium-sized enterprises can be seen as a sign of such positive action.348 However, the 
Special  Ombudsman  will  protect  the  rights  and  interests  of  both  female  and  male 
entrepreneurs,  although  in  practice,  women  may  benefit  more  from  this  protection 
(because they run a micro-business activity more often than men). 

8.6  Social protection 

The statutory social security system in Poland349 provides for the same mechanisms for all 
social and professional groups, including self-employed workers and persons cooperating 
with  them  (only  farmers  are  subject  to  specific  regulations).  In  the  context  of  Law  on 
statutory social security, in order to be covered by the insurance, the spouse and other 
family members must not only  cooperate with  the self-employed person, but must also 
share  a  common  household  with  them.  Both  self-employed  persons  and  persons 
cooperating  with  them  are  subject  to  compulsory  old-age  and  disability  insurance  and 
insurance  against  accidents  at  work  and  occupational  diseases  (Article 6(1)  point  5).350 
The insurance covering sickness and motherhood may be joined by these persons  on a 
voluntary basis (Article 11(2)).  

348  See: Law of 30 March 2018 on the Ombudsman for small and medium size enterprises, JoL 2018 Item 648. 

The local offices of the Ombudsman have been opened in several cities.  

349  This system covers: old-age insurance, disability insurance, insurance in case of sickness and maternity 
(sickness insurance) and insurance against accidents at work and occupational diseases (work accidents 
insurance) (Article 1 of the Law on statutory social security).  

350  Persons who conducted an economic activity for at least six months and suspended it because of taking 

care of a child are also entitled to old-age and disability insurances (Article 6a of the Law on statutory social 
security).  

111 

 
 
 
 
 
 
 
 
 
 
Pursuant  to  the  Law  of  1990,  the  social  insurance  of  farmers  covers  the  farmers 
themselves  as  well  as  members  of  their  household  working  with  them  (Article  1(1)).351 
The  provisions  of  the  Act  concerning  the  farmers’  insurance  and  benefits  to  which  the 
farmer is entitled shall also apply to the farmer’s spouse, unless the spouse does not work 
in  the  farmer’s  household  or  in  a  household  directly  related  to  the  agricultural  holding 
(Article 5).  The  social  insurance  for  farmers  includes  insurance  in  case  of  accidents, 
sickness and motherhood, as well as old-age and disability pensions (Article 1(2)).  

For farmers (and members of their households) operating an agricultural farm larger than 
one hectare, the insurance from all of the above titles is obligatory.352 For other farmers 
or members of their households it is optional (Articles 7 and 16). Since 2016, maternity 
benefits  apply  only  to  those  farmers  and  their  family  members  who  are  covered  by 
retirement and disability insurance (having accident and sickness insurance alone is not 
sufficient). The benefit is granted both to the insured mother (biological or adoptive) of 
the  child  and  the  father  of  the  child  (at  the  request  of  the  mother,  after  14  weeks  of 
receiving it by her, or in the event of the death of the mother or abandonment of the child 
by  the  mother).  The  State  provides  additional  support  if  the  total  amount  of  collected 
social insurance contributions is not sufficient to cover all benefits.353  

8.7  Maternity benefits 

The  wording  of  Article  8  of  the  2010/41/EU  Directive  has  been  reflected  in  Poland  in 
different  legal  acts.  The  most  important  is  the  previously  mentioned  Article  1751  LC, 
introduced  in  2015,354  which  refers  to  the  protection  of  parental  rights  of  all  insured 
workers, also those  without the status  of  employees in the understanding of the  LC. In 
addition, Articles 48 and 48a of the Law on Maternity Benefits; and Article 35a of the Law 
on Social Insurance of Farmers should be mentioned.  

Currently, an insured woman conducting economic activity may collect maternity benefits, 
not only during maternity leave, but also during the entire parental leave (a total of 52 
weeks),  just  like  a  person  employed  on  the  basis  of  a  labour  law  contract.  In  order  to 
qualify for such benefits, until 1 January 2016, no minimum insurance period was taken 
into  account  for  the  calculation  of  such  benefits.355  Current  rules,356  laying  down  a 
limitation  of  entitlement  to  maternity  benefits  with  regard  to  women  (who  are  non-
agriculturally self-employed), created such situation that those allowances are much lower 
than before, however they can never be lower than PLN 1 000 (EUR 221), otherwise they 
would not meet the requirement of sufficiency.357 

351  In addition, under certain conditions, it is also available to farmers’ assistants. 
352  It is also obligatory for a person collecting a structural pension co-financed from funds from the Guarantee 

Section of the European Agricultural Guidance and Guarantee Fund or from funds from the European 
Agricultural Fund for Rural Development; and also for the spouse of such a person, Article 16 of the Act on 
social insurance for farmers and their families. 

353  The contribution to this insurance is financed from a subsidy from the state budget to the pension fund 
designated for these contributions in KRUS in the case of childcare of up to three years of age, but not 
longer than five years of age, provided that the farmer or household member is not subject to other social 
insurance. 

354  By the Law of 24 July 2015 on amendments of the Labour Code and several other laws (JoL 2015 Item 

1268), in force from 2 January 2016. This provision was criticised as breaking the logic of the legal system 
as a whole because it provided in the Labour Code the regulation on the entitlements of parents being 
workers but not employees.  

355  The jurisprudence of the courts has repeatedly stressed that the right to maternity leave (in the case of 

workers) is something different from the right to maternity allowance for self-employed workers granted for 
a period equivalent to the period of maternity leave, which does not have to suspend it during the 
maternity leave (the allowance compensates them for the loss of income caused by childcare). For more on 
this subject cf. judgment of the Constitutional Tribunal of 24 March 2015 (P 42/13), available at: 
http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20150000486/T/D20150486TK.pdf.  

356  Article 48a of the Law on Maternity Cash Benefits.  
357  According to the amendments brought about by the Law of 15 May 2015 (which has been in force from 1 

January 2016) self-employed women are entitled to receive maternity benefits amounting to 100 % of the 
declared amount of income, only if they have paid the obligatory sickness insurance for a minimum of 12 
months prior to commencing maternity leave. In other cases, the maternity benefits will be calculated from 

112 

 
 
 
 
 
 
 
According to Article 35a of the Law on social insurance of farmers, as amended in 2015, 
an insured person (farmer or household member) is entitled to maternity benefits in the 
case of the birth of a child, or adoption of a child (or taking on for bringing up) up to seven 
years of age. Maternity allowance is granted for 52 weeks in the case of birth (taking one 
child for bringing up), and progressively increases to 71 weeks if more than one child is 
born at one birth or taking more than four children to bring up.358 Under the new rules, 
these benefits amount up to the full amount of parental benefit referred to in the Act of 
28 October 2003 on Family Benefits (Article 35 b), i.e. in 2018 it amounted to PLN 1 000 
(EUR 221) per month for the whole period mentioned above.  

The difference in the  rules of  establishment  of  the maternity-related benefits which are 
not fully determined by the amount of paid contributions by the individual may, to a certain 
extent, be explained by relatively much lower insurance contributions paid by farmers in 
comparison with employees. It may also be connected with the fact that for a farmer or a 
household  member,  subject  to  pension  insurance  under  the  Act  or  upon  application,  in 
connection with personal childcare lasting for up to three years, but not longer than until 
the  child  reaches  the  age  of  five,  the  contribution  to  this  insurance  is  financed  from  a 
subsidy from the state budget to the pension fund allocated to these contributions. The 
condition  is  that  this  farmer  is  not  subject  to  another  social  insurance  scheme  (Article 
16a). This provision also applies to a farmer or a household member who additionally runs 
a non-agricultural activity, who is insured for at least  three years and who suspends or 
ceases non-agricultural economic activity during the period of personal childcare (Article 
16b).  

After the changes referred to above, the maternity allowance for farmers already seems 
to  meet  the  sufficiency  criterion  laid  down  in  Article  8(3)(c)  of  Directive  2010/41/EC  – 
particularly since the PLN 500 (EUR 110) monthly allowance per child should also be taken 
into account for each child, on the basis of the Family 500 plus programme. 

A  mother  conducting  economic  activity  may  combine  running  the  company  with  taking 
care  of  a  child,  which  will  not  result  in  losing  the  right  to  maternity  benefits.  While 
collecting maternity benefits, she will be released from the obligation to pay accident and 
sickness359  insurance  contributions  and  maternity  insurance  contributions  as  well  as 
pension insurance contributions (which  are paid by the State), yet she will have to pay 
health  insurance  contributions.360  If,  however,  after  giving  birth,  the  person  decides  to 
suspend  her  activity  for  the  period  of  collecting  the  benefits,  she  will  be  released  from 
health insurance contributions as well. 

In practice, sometimes it is difficult to determine when a self-employed woman who adopts 
a child is entitled to maternity allowance. The following case may serve as an illustration 
of this problem. A self-employed mother has been running her own business since 2009. 

the lowest amount of money that, according to the law, can be declared as the basis for calculating 
insurance premiums. The estimations as to the level of the maternity allowances, made just after the 
amendments, proved that it may be as low as EUR 4 (PLN 17.20). See Lasocki, T., available at: 
http://niezalezna.pl/68363-rzad-wykiwal-przedsiebiorcze-matki-dostana-17-zl-i-77-groszy-zasilku-
macierzynskiego. Successive amendments to Article 48a have eliminated similar absurd situations. 
Currently, the lowest maternity allowance is EUR 238 (PLN 1 000). Although this benefit is very low taking 
into account the fact that in 2018 the minimum wage in Poland was approximately EUR 500 (PLN 2 000), it 
is nevertheless difficult to make an insufficiency charge within the meaning of Article 8(3) of Directive 
2010/41 /EC because it corresponds to the amount of other family allowance. The minimum wage was 
raised in 2016 to EUR 460 (PLN 1 990) (net: EUR 364, PLN 1 565). 
http://wyborcza.biz/biznes/1,100896,18219094,Minimum_1_tys__zl_zasilku_macierzynskiego_dla_matek.
html?disableRedirects=true.  

358  65 weeks in the case of two children born in one birth; 67 weeks in the case of three children; 69 weeks in 
the case of four; 71 weeks for more than 4 children (Section 35a(3) of the Act on Social Insurance for 
Farmers). 

359  Related to the work performed during the activity. 
360  This type of obligatory insurance entitles the insured person to health services covered by the fund from 
public money. In the case of farmers and registered unemployed persons, the contributions to health 
insurance are paid from the state budget. 

113 

 
 
 
 
 
 
In June 2014, she applied for adoption to the family court and in July 2014, she suspended 
her own business. The main reason was the intention to take care of her daughter, who 
was  then  still  under  the  care  of  a  professional  foster  family.  The  child  was  sent  to  the 
woman’s home already in July, while  formal custody (in the  form  of  a court decision to 
secure  personal  contact  with  the  minor)  was  entrusted  to  her  a  month  later,  in  August 
2014. In October, the woman resumed her economic activity and the final court decision 
on her daughter’s adoption was made in April 2015. Pursuant to  Article 29(1)(3) of the 
Law on cash benefits from social insurance in case of illness and maternity, a maternity 
allowance is granted to an insured person who – during the period of sickness insurance 
or maternity/parental/childcare leave – takes a child up to 7 years of age for bringing up 
(or a child with disabilities up to 10 years of age) and applies to the court for adoption. 
The  key  issue  here  was  to  determine  when  the  woman  actually  accepted  her  future 
daughter for bringing up. In the opinion of ZUS, the decisive factor was the court’s decision 
of August 2014 to secure personal contact between Mrs. M. and her child. At that time, 
however, she had her business activity suspended, so – from the point of view of the Law 
mentioned above – she was not insured, and therefore she was not entitled to maternity 
allowance  for  the  parent  of  the  adopted  child.  This  is  how  ZUS  assumed  and  in  result 
rejected the application for the maternity allowance. This decision was critically assessed 
in  the  mass  media  as  evidence  that  ZUS  interprets  the  above-mentioned  Law  in  a 
discriminatory way towards self-employed adoptive parents361 and it was finally annulled 
by the Supreme Court in the ruling of 7 December 2017 (II UK 619/16). In the reasoning, 
the  Supreme  Court  underlines  among  other  things,  that  adoption  is  a  process  that  is 
spread over time and requires the reprogramming of the lives of future parents. It can be 
assumed that this trial  began when the application for  adoption  was submitted and the 
claimant was insured at that time. Therefore, in the opinion of the Court she fulfilled the 
conditions for obtaining the benefit. A different interpretation should be considered as too 
positivist an approach to the binding regulations.  

A  self-employed  person  in  Poland  also  has  the  right  to  something  similar  to  unpaid 
childcare  leave  (urlop  wychowawczy).362  In  order  to  obtain  this  benefit,  such  a  person 
must officially interrupt his or her professional activity, directly indicating that in this period 
he or she intends to provide personal care for a child. During the period of time devoted 
to  taking  care  of  the  child,  the  State  pays  the  contributions  for  pension  (retirement) 
insurance  as  well  as  contributions  for  health  and  disability  insurance.  The  basis  for 
calculation of the contributions is the amount equal to 60 % of the expected remuneration 
in a given year. In order to be able to take childcare leave, persons conducting professional 
activity  have  to  meet  the  condition  of  having  paid  social  insurance  contributions  for  at 
least six months. This period may not be interrupted and must occur immediately before 
the childcare leave. If an entrepreneur has paid contributions for less than six months, the 
Social  Care  Institution  (ZUS)  only  pays  retirement  contributions,  meaning  that  in  this 
period the entrepreneur loses his entitlement to health insurance.  

In practice, there was a problem as to whether persons suspending economic activity due 
to childcare and being in a very bad financial situation (due to which they are entitled to 
child  benefit)363  are  also  entitled,  just  like  employees  in  a  similar  situation,  to  special 
childcare allowance during the period of taking parental leave, in the amount of PLN 400 
(EUR 88) per month. 

The courts of appeal ruled on such cases against the self-employed person. For example, 
the Court of Appeal in Łódź, in its ruling of 21 March 2018 (II Sa/Ld 477/17) ruled that a 
person who conducted non-agricultural business activity and suspended it due to the birth 

361  https://praca.gazetaprawna.pl/artykuly/1091317,zus-zasilek-macierzynski-dla-rodzicow-adopcyjnych.html 

and https://www.rp.pl/Rodzina/312079883-Zasilek-a-adopcja---wyrok-Sadu-Najwyzszego.html. 

362  In the literature, sometimes it is labelled as a ‘childcare leave like’ benefit.  
363  The main criterion for the granting of child benefit is the income criterion per capita in a family. Such a 

benefit is granted if such income per person does not exceed PLN 674 (EUR 156.70) per month (for a child 
with disabilities – PLN 764 (EUR 177.60). 

114 

 
 
 
 
 
of a child does not meet the requirements of Article 10(1) of the Act of 28 November 2013 
on Family Benefits (JoL of 2016, Item 1518, as amended), because such a person does 
not have the right to parental leave in light of Article 186 Section 1 of the LC, because he 
or  she  is  not  an  employee.  Suspension  of  economic  activity  cannot  be  equated  with 
parental leave, as there is no legal provision allowing for such action by an authority. A 
similar  ruling  was  issued  in  this  respect  by  the  Court  of  Appeal  in  Warsaw  on 
17 August 2017  (I  SA/Wa  375/17),  emphasising  that  under  the  Polish  system  of  law, 
entrepreneurs  and  employees  fall  into  different  circles  of  entities.  A  person  who  has 
suspended business activity cannot be considered as entitled to parental leave, nor can 
he/she  take  this  leave  because  he/she  is  not  in  an  employment  relationship.  The  same 
applies  to  the  ruling  of  the  Court  of  Appeals  in  Białystok  of  26  January  2017 
(II SA/Bk 2/17).  These  rulings  prove  the  unequal  treatment  of  employees  and  self-
employed  persons,  who  are  not  employees,  who  temporarily  interrupt  their  economic 
activity in connection with raising a child, but are in a difficult material situation. 

There  are  no  services  supplying  temporary  replacements  or  national  social  services  for 
self-employed persons.  With the exception mentioned above, legislation seems to be in 
compliance with the requirements laid down in EU law.  

8.8  Occupational social security 

8.8.1  Implementation of provisions regarding occupational social security 

The provisions regarding occupational social security may apply to self-employed persons 
on the grounds of Article 5(4) of the Law on occupational pension schemes (PPE) and the 
corresponding Article of the Law on occupational capital pensions (PPK). According to this 
provision,  persons  conducting  an  economic  activity  are  entitled  to  participate  in  these 
programmes. 

8.8.2  Application  of  exceptions  for  self-employed  persons  regarding  matters  of 

occupational social security (Article 11 of Recast Directive 2006/54) 

There are no specific exceptions in the application of PPE or PPK to self-employed persons. 
The  law  explicitly  states  that  with  regard  to  persons  conducting  economic  activity,  who 
participate in the programme, all provisions apply regarding employees (Article 5(5) of the 
Law on occupational pension schemes). Although there are no such provisions in the Law 
on  occupational  capital  pensions  (PPK)there  are  no  grounds  for  differentiation  of  the 
situation under PPE and PPK in this respect, what results from other general provisions.  

8.9  Prohibition of discrimination 

The  Law  on  PPE  does  not  contain  any  specific  non-discrimination  clause.  However, 
Article 8(2)  of  the  Anti-Discrimination  Law  applies  to  such  situations.  This  provision 
stipulates that unequal treatment of private persons with regard to sex is prohibited, inter 
alia, with respect to: conditions of undertaking and performing commercial or professional 
activity, including such performed upon employment contracts or civil law contracts. 

8.10 Evaluation of implementation 

The  provisions  of  the  Polish  Acts  which  may  be  referred  to  as  implementation  of 
Directive 2010/41/EU,  although  they  are  not  always  explicitly  indicated  as  such, 
correspond  in  general  to  the  content  of  the  provisions  of  the  Directive.  However,  they 
differ in detail. In particular, the  scope  of protection against discrimination provided for 
such persons in the Anti-Discrimination Act declares a similar scope of protection against 
discrimination  (except  that,  unlike  Article  4  of  the  Directive,  it  applies  only  to 
establishment  and  exercise  of  business,  and  does  not  include  its  equipment  and 
extension).  The  Polish  legislation  regarding  workers  does  not  refer  to  'life  partners', 

115 

 
 
 
 
 
 
 
 
 
 
 
although the definitions of 'householder' within the meaning of the legislation regarding 
farmers  and  their  'collaborators',  applicable  in  relation  to  the  self-employed  outside 
agriculture, overlap with this concept. Polish legislation does not meet the requirement of 
Article  8(4)  of  the  Directive  to  provide  access  to  services  supplying  a  temporary 
replacement for self-employed workers, female spouses and life partners, in connection 
with  the  use  of  maternity  benefits.  Low  minimum  maternity  allowances  for  these 
categories  of  persons,  although  formally  equivalent  in  amount  to  other  family-related 
allowances established in the Polish social-aid law (within the meaning of Article 8(3)(c) 
of the Directive), may give rise to doubts as to their sufficiency, especially as they amount 
to half of the minimum wage. 

8.11 Remaining issues 

Successive Anti-Crisis Shields introduce solutions aimed at providing economic support to 
the  self-employed,  i.e.  entrepreneurs  who  are  natural  persons  without  employees.  The 
self-employed may cancel ZUS for three months, receive a parking benefit (without having 
to  pay  tax  on  it),  postpone  ZUS  payments  or  spread  it  in  instalments,  postpone  tax 
payments or spread it in instalments. The law also provides for the possibility of receiving 
support for part of the costs of doing business in the event of a drop in turnover as a result 
of the coronavirus pandemic. The amount of support depends on the documented decrease 
in  turnover.364  At  the  moment,  it  is  difficult  to  identify  regulations  that  are  relevant  in 
terms of the gender of their addressees. The author has not identified any issues worth 
raising, other than those discussed in the above text. 

364  https://www.gov.pl/web/rodzina/wsparcie-dla-samozatrudnionych-odpowiadamy-na-pytania. 

116 

 
 
 
 
 
 
9 

Goods and services (Directive 2004/113)365 

9.1  General (legal) context 

9.1.1  Surveys and reports about the difficulties linked to equal access to and supply of 

goods and services 

In Poland, no comprehensive research on gender discrimination in the area of access to 
goods and services has been conducted in recent years. The only significant publication 
on discrimination in the area of access to goods and services is the 2015 handbook of the 
Polish  Society  for  Anti-Discrimination  Law  ‘Discriminatory  tests.  Practical  handbook  for 
NGOs.’366 This publication is a collection of scenarios of exemplary discriminatory tests to 
be  used  by  NGOs  operating  in  the  field  of  counteracting  discrimination.  Its  aim  is  to 
facilitate  the  gathering  of  effective  evidence  to  prove  unlawful  unequal  treatment.  The 
publication does not include scenarios concerning gender discrimination and therefore the 
publication does not provide relevant data for this report.  

9.1.2  Specific  problems  of  discrimination 
market / collaborative economy 

in 

the  online  environment / digital 

No  specific  problems  of  gender  discrimination  with  access  to  and  supply  of  the  online 
environment / digital market / collaborative economy have been identified. 

9.1.3  Political and societal debate 

Cases on the refusal to provide services in a restaurant for a breastfeeding mother, as well 
as the prohibition from entering a shop, for women with a baby in a trolley, raised societal 
discussion (see below). There was also a strongly politicised public discussion in connection 
with the refusal to provide services by a private company offering public printing services 
but on grounds other than gender.367  

9.2  Prohibition of direct and indirect discrimination 

The Polish law provides for prohibition of direct and indirect discrimination on the grounds 
of sex in access to, and the supply of, goods and services, in Articles 4 and 6 of the Anti-
Discrimination Law (while defining its scope of application).  

9.3  Material scope 

The material scope  of  Polish law  relating to access to goods and services is  exactly the 
same  as  specified  in  Article  3  of  Directive  2004/113.  It  prohibits  unequal  treatment  of 
natural persons, inter alia, with  regard to sex,  including access and  conditions of  social 
insurance  services,  housing  services,  goods  and  energy  if  offered  publicly,  as  well  as 
acquiring rights deriving from those goods and services. 

365  See, for example, Caracciolo di Torella, E. and McLellan, B. (2018), Gender equality and the collaborative 
economy, European network of legal experts in gender equality and non-discrimination, available at 
https://www.equalitylaw.eu/downloads/4573-gender-equality-and-the-collaborative-economy-pdf-721-kb. 

366  Wysieńska-Di Carlo, K., Śmiszek, K. (eds): Testy dyskryminacyjne. Praktyczny podręcznik dla organizacji 

pozarządowych (Discriminatory tests. Practical handbook for NGOs.), Polskie Towarzystwo Prawa 
Antydyskryminacyjnego, Warszawa2015. Accessible at: 
http://www.ptpa.org.pl/site/assets/files/1029/publikacja_testy_dyskryminacyjne_praktyczny_podrecznik.p
df. 

367  https://www.polsatnews.pl/wiadomosc/2018-06-14/drukarz-ktory-odmowil-druku-plakatow-lgbt-winny-
wykroczenia-sn-oddalil-kasacje-ziobry/, https://oko.press/drukarz-nie-obsluzy-osob-lgbt-za-to-trybunal-
konstytucyjny-obsluzy-ziobre/.  

117 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
9.4  Exceptions 

The  Anti-Discrimination  Law  provides  similar  exceptions  from  the  material  scope  as 
specified  in  Article  3(3)  of  Directive  2004/113/EC.  According  to  Article  5  of  the  Anti-
Discrimination  Law,  it  does  not  apply  to  content  included  in  mass  media  and 
advertisements with regard to access  and delivery  of goods and  services (Item 2); and 
educational services (Item 4), if they relate to different treatment with regard to sex. The 
content of Article 5(3) of the Anti-Discrimination Law, which states that: ‘the law shall not 
apply to the freedom of choice of the contracting party as long as it is not based on sex’ 
corresponds with Article 3(2) of the Directive.  

9.5  Justification of differences in treatment  

Article 4(5) of Directive 2004/113 is implemented by the provisions in Article 5(5) of the 
Anti-Discrimination Law, which states:  

‘This Act shall not apply to differences in treatment on grounds of sex between men 
and women in the exceptions to and conditions for the use of services, goods and 
the  acquisition  of  rights  or  energy,  provided  that  the  provision  of  such  services 
exclusively or primarily for representatives of one sex is objectively and reasonably 
justified by a legitimate aim and that the means of achieving that aim are appropriate 
and necessary’.  

In previous judicial practice, this problem arose in two situations, both before and after 
the  Anti-Discrimination  Act  entered  into  force.  Firstly,  before  this  entry  in  2005,  in  the 
case of the café  ‘Babie  lato’  in Częstochowa,  which was available  only  for women (men 
could visit it only if they wore one of two specially prepared female wigs). This case became 
the subject of a court decision, in connection with a man’s reporting to the Police of the 
commission of an offence by a waitress under Article 135 of the Civil Code (for refusing to 
sell  goods  without  a  justified  reason  for  denial).  The  waitress  omitted  to  serve  him  the 
goods on the premises when he refused to put on the wig. The city court in Częstochowa 
acquitted the waitress. In the opinion of the Court, such a decision of the café owner was 
justified by economic freedom that is protected in Poland. Therefore, the owner of the café 
could  decide  that  contracts  to  buy  or  sell  in  this  café  may  be  signed  with  selected 
customers under certain conditions.368  

Secondly, this problem has arisen in a more recent case in 2018, when a public Aqua-park 
in Wrocław restricted the sauna for exclusive use by women on one particular day of the 
week. The complaint was filed by a man who held a monthly pass and found that the same 
price of the pass for women and men was not justified in this situation. The case was taken 
up  by  the  RPO,  who  expressed  doubts  as  to  whether  this  practice  did  not  constitute 
discrimination  against  men  on  the  grounds  of  sex  in  access  to  services  offered  to  the 
public.  He  eventually  addressed  the  Municipal  Office  of  Consumer  and  Competition 
Protection to investigate whether such practice was correct. The Directorate of the Aqua-
park pointed out that women felt constrained by the presence of men, given the fact, that 
according to the house rules, they should enter the saunas naked, only with towels to hide 
behind. They asked for a day restricted only to women. Therefore, the provision of sauna 
services once a week exclusively for women is objectively and reasonably justified by a 
legitimate aim and proportionate. The case is still pending; no information on the reaction 
of the above-mentioned authorities on the RPO intervention has been identified.369 In the 

368  https://wiadomosci.dziennik.pl/wydarzenia/artykuly/136220,kawiarnia-tylko-dla-pan-to-niewypal.html. 
369  Cf.: https://gazetawroclawska.pl/aquapark-na-cenzurowanym-dyskryminuje-mezczyzn-sprawa-zajal-sie-

sam-rzecznik-praw-obywatelskich/ar/12895524. In addition, it is known that all major cinema chains offer 
film screenings dedicated exclusively to women. There are also women-only fitness centres and gyms, as 
well as separate women's and men's hairdressing salons. There is no information on whether there have 
been any complaints about discrimination on the grounds of sex. Therefore, the justification for such 
differences in treatment has not been examined.  

118 

 
 
 
 
 
 
 
 
meantime, the public Aqua-park in Wrocław opened exclusively for women, in addition to 
three kinds of sauna. 

9.6  Actuarial factors 

Polish law explicitly ensures that the use of sex as an actuarial factor in the calculation of 
premiums and benefits for the purposes of insurance (and related financial services) may 
not result in differences in the premiums and benefits of individuals. This rule applies in 
the occupational and statutory social insurances schemes (see Sections: 6.7 and 7.6. of 
this report), as well as to private insurances. Currently this rule is provided for in Article 34 
of the Law of 11 September of 2015 on insurance activity and reinsurance,370 which states 
that the application of the criterion of sex in calculating insurance premiums and benefits 
cannot result in differentiation of premiums and benefits of particular persons. It is also 
prohibited to differentiate premiums and benefits, as well as financial services connected 
with them, with regard to pregnancy and maternity. The latter prohibition applies to life 
insurance, dowry insurance, childcare, accident pension insurance, sickness insurance, as 
well as other personal and material insurances.  

9.7  Interpretation of exception contained in Article 5(2) of Directive 2004/113 

Any interpretation of exceptions contained in Article 5(2) of Directive 2004/113 was not 
needed since the prohibition of use of sex as an actuarial factor was introduced into Polish 
legislation already in 2009, prior to the Test-Achats ruling.371  

9.8  Positive action measures (Article 6 of Directive 2004/113) 

No positive action measures have been adopted aimed at  equalising de facto access to, 
and the supply of, goods and services for women and men.  

It is worth mentioning the LGBT plus card, prepared in 2018 by the President of Warsaw 
elected  that  year,  which  assumes,  among  other  things,  the  establishment  of  an 
intervention shelter for LGBT people excluded by their families, a socio-cultural centre for 
LGBT  and  special  activities  aimed  at  counteracting  violence  against  LGBT  people  and 
educational activities. This is the first such document in Poland.372 

9.9  Specific problems related to pregnancy, maternity or parenthood 

There have been cases when women who were breastfeeding in public places have been 
asked to leave the premises (e.g. shopping centres and restaurants). These cases have 
become the subject of interventions of the RPO and the Governmental Plenipotentiary for 
Equal Treatment.  

370  Consolidated text JoL 2019 Item 381. This law replaced the Law of 22 May 2003.  
371  It should be noted that the Law of 13 February 2009 on amendment of the Law on insurance activities and 
certain other laws (JoL 2009 No. 42, Item 342) added to the Law on insurance activities of 22 Jun 2004 the 
provisions of Article 18a and Article 18b which prohibits using sex as an actuarial factor (as implementation 
of Article 5 of Directive 2004/113/EU). Before this amendment, Poland took advantage of the option 
(regulated in Article 5(2) of the Directive) to temporarily permit differences in individuals' premiums and 
benefits, hence to exclude insurance services from the obligation of equal treatment with regard to sex. See 
further: Więcko Tułowiecka, M., Dyskryminacja płciowa w ubezpieczeniach- wytyczne dotyczące stosowania 
dyrektywy 2004/113/ w zakresie ubezpieczeń majątkowych i osobowych w świetle wyroku Europejskiego 
Trybunału Sprawiedliwości w sprawie C 235/09 (Test Achats) (Sex-related discrimination in insurances – 
Guidelines on the application of Council Directive 2004/113/EC to insurance in light of the judgment of the 
Court of Justice of the European Union in Case C-236/09 (Test-Achats)), Monitor Ubezpieczeniowy 2012 
No. 50, September. 

372  In February 2019 the Charter was signed, 

http://warszawa.wyborcza.pl/warszawa/7,54420,24468532,prezydent-warszawy-podpisal-karte-lgbt.html.  

119 

 
 
 
 
 
 
 
 
 
 
 
 
One such breastfeeding incident, which referred directly to  the Anti-Discrimination Law, 
became  the  subject  of  a  court  ruling.373  It  was  the  case  of  a  woman  who  went  to  a 
restaurant with her family. When she wanted to feed her crying baby at the table, she was 
told  by  the  waiter  that  the  management  of  the  restaurant  did  not  allow  clients  to 
breastfeed at the tables, because this disturbed other clients. She was advised to do this 
in  the  toilets  and  when  she  refused,  she  was  finally  offered  a  chair  located  next  to  the 
toilets.  On  behalf  of 
the  woman  an  NGO,  Polskie  Towarzystwo  Prawa 
Antydyskryminacyjnego  (Polish  Anti-discrimination  Law  Society),  submitted  a  claim 
against  the  owner  of  the  restaurant,  arguing  that  such  conduct  constituted  direct 
discrimination in the access to a service available to the public, with regard to maternity, 
i.e. sex. The claim was based on the provisions of Articles 23 and 24 of the Civil Code, 
regarding a violation of personal goods and Article 6 in connection with Article 13 of the 
Anti-Discrimination Law. The proceeding was also joined by the Commissioner for Human 
Rights.  The  court  of  first  instance  dismissed  the  claim,  not  believing  the  claimant’s 
statement that the waiter had initially proposed the restrooms as a place for breastfeeding, 
before  offering  her  a  chair  next  to  the  restrooms.  The  court  found  as  ‘contrary  to  life 
experience’ the possibility that a restaurant that had just opened and had to attract new 
clients would impose a total prohibition of breastfeeding, while having a family-oriented 
profile, e.g. giving the children colouring sheets while they waited for their meal. On the 
other hand, the court did not doubt the argument of the defendant, that a newly opened 
restaurant could have so many cases of breastfeeding mothers that it provided a special 
chair  for  this  purpose.  According  to  the  court  of  first  instance,  this  was  not  a  case  of 
discrimination, because the waiter had not submitted the woman to any particular action. 
Instead he merely informed her of a complaint by other restaurant guests, asking her to 
breastfeed more discreetly or to find a less public place in the restaurant. According to the 
court  of first instance  ‘forwarding a request does not  constitute unequal treatment’ and 
‘the requests of other guests were appropriate as – according to one of the waiters – the 
claimant  was  breastfeeding  very  ostentatiously’.  As  a  result,  the  court  of  first  instance 
ruled that the actions of the waiter were justified, because ‘breastfeeding in public places 
cannot violate the personal rights of other people, nor social or moral norms in this regard’. 
The  female  claimants  and  the  representative  of  the  Commissioner  of  Human  Rights 
disagreed with the view of the court. The appeal lodged by the Polish Anti-discrimination 
Society emphasised that one of the forms of unequal treatment is the embarrassment and 
humiliation of mothers who are breastfeeding in public places. ‘Making women feel that 
breastfeeding is something shameful may result in them being afraid to breastfeed at a 
time and place which  is the most  suitable for their child’.  This,  on the other hand, may 
lead  to  ‘restricting  women  from  participation  in  social  life  in  public  spaces’,  as  well  as 
‘restricting the practice  of breastfeeding itself’,  a practice that is recommended by both 
the WHO and the Polish Ministry of Health. According to the appellants, the presented facts 
constituted  an  example  of  a  violation  of  the  Anti-Discrimination  Law,  thus  constituting 
discrimination with regard to sex, during the maternity period. As a result, they claimed 
that  the  mother  should  be  awarded  damages  according  to  Article  13  of  the  Anti-
Discrimination Law. The Court of Appeals in Gdańsk agreed with those arguments. In the 
ruling  of  14  December  2017,  it  overturned  the  ruling  of  the  court  of  first  instance  and 
ordered the restaurant owner to pay the amount of PLN 2 000 (EUR 441) in damages plus 
interest.  Additionally,  the  restaurant  owner  was  obliged  to  issue  a  public  statement 
apologising to the woman for unlawfully preventing her from breastfeeding her child at the 
restaurant table, which ‘constituted discrimination with regard to sex’. The statement had 
to  be  published  on  a  web  portal  which  had  published  an  article  on  the  whole  situation, 
generating very offensive comments which had been addressed to the woman. The ruling 
is final.374 

373  The District Court in Gdańsk ruled in the first instance in this case, on 12 December 2016 (I C 206/15). 

This judgment was then changed by the ruling of the Court of Appeals in Gdańsk of 14 December 2017, I 
Aca 187/17.  

374  The reasoning behind this ruling is not yet available. The ruling has been referred to on the basis of the oral 

reasoning presented by the court during the hearing and in press releases 

120 

 
 
 
The Commissioner for Human Rights also received many complaints about lack of access 
to  shops,  railway  station  platforms,  pedestrian  crossings  and  beaches  for  people  with 
prams. As this is most often the case for women, the lack of action by the public authority 
responsible for this can be seen as indirect gender discrimination.  

One of those complaints ended up in court. The case concerned a mother, who at the end 
of  2015  went  to  a  local  second-hand  shop  with  her  one-year-old  daughter.  The 
saleswomen forbade her to enter the shop with a pram, asking her to leave it in front of 
the  shop  and  do  the  shopping  with  her  daughter  in  her  arms.  When  she  stated  that 
browsing through clothes with the child in one hand would not be very comfortable, she 
was told that she could leave the pram with the child in front of the shop. The saleswoman 
also commented that a mother should go for a walk in the park with her child, rather than 
shopping, and that she was not a decent mother, because she was focusing on shopping 
instead of the child. The mother brought the case to the Commissioner for Human Rights, 
who  agreed  that  the  seller’s  behaviour  was  discriminatory  on  grounds  of  sex  and 
motherhood. The Commissioner’s office asked the police to intervene. After the victim and 
the  shop  owner  testified  at  the  police  station,  the  case  was  brought  to  court.  The 
notification  pointed  to  the  possibility  of  commitment  of  a  contravention  specified  in  the 
previously mentioned Article 138 of the Code of Contraventions.375 

In  another  decision  rendered  in  absentia,  that  is,  without  a  hearing  and  without  the 
presence of the parties, the district court in the ruling of 5 December 2016376 imposed a 
fine of PLN 20 (EUR 4) on the seller and ordered him to remove a sign prohibiting entry 
into the shop with trolleys. According to the general rules provided for in this Code, this 
was the lowest possible amount of the fine (the maximum being PLN 5 000 (EUR 1 103)). 
The follow-up of this case is not  surprising:  the sign with information about the ban on 
trolleys remained on the front door to this shop, despite this ruling.377 The court did not 
recognise the existence of sex discrimination in this case. Also, the punishment imposed 
on the owner of the shop was extremely low (in addition, the defendant was exempted 
from court fees). Such lenient treatment of the owner (offender) almost certainly will not 
prevent him from similar behaviour in the future. Nor can it serve as an example, to deter 
other  persons  from  such  behaviour  –  just  the  opposite  –  it  may  enshrine  in  the  public 
opinion the belief that discriminatory behaviour is not considered to be a serious violation 
of law.  

9.10 Evaluation of implementation 

The provisions of Anti-Discrimination Law in respect of the personal and material scope of 
protection  against  discrimination  on  the  grounds  of  sex  correspond  with  the  respective 
provisions of Directive 2004/113/EC. However, as already mentioned, reservations may 
be  raised  as  to  the  implementation  in  this  Act  of  central  concepts  such  as  indirect 
discrimination, which in Article 3(2), speaking of a particular disadvantaged situation omits 
indication as to whom such person should be compared (the Directive says here: about 
'particular disadvantage compared with persons of the other sex'.) The Anti-Discrimination 
Law, while defining indirect discrimination besides the notion of a ‘particular disadvantage 
situation’  (szczególnie  niekorzystna  sytuacja),  also  uses  the  notion  of  ‘disadvantage 
disproportions’ (niekorzystne dysproporcje) without explanation as to what it means. In 
the opinion of the author, the first notion is broad enough to cover the second.  

http://www.dziennikbaltycki.pl/wiadomosci/gdansk/a/prawomocny-wyrok-ws-karmienia-piersia-w-
sopockiej-restauracji-przeprosiny-i-2-tys-zl-dla-kobiety-zdjecia,12768777/. 

375  Which states: ‘Whoever, while professionally rendering services ... intentionally refuses to render services 

for which he is obliged, without a justified reason, shall be subject to the penalty of a fine’. 

376  Ruling of 5 December 2016 of the District Court for the Warsaw residential district of Wola, case no.: V W 
4937 /16 (not final). The ruling has not been published. It has been submitted as a courtesy of the NGO: 
Polish Society of Anti-Discrimination Law. 
377  https://bezprawnik.pl/z-wozkiem-do-sklepu/. 

121 

 
 
 
 
 
 
 
There are also concerns about the inclusion of sexual harassment as any unwanted conduct 
relating  to  sex,  and  there  is  no  clear  indication  that  unequal  treatment  on  grounds  of 
maternity constitutes direct discrimination on grounds of sex, as provided in Recital 20 of 
the Directive. Furthermore, the rule on compensation raised objections since it does not 
expressly state that it concerns both material and moral damage. 

9.11 Remaining issues 

There  are  no  remaining  issues  to  discuss.  There  were  no  examples  found  of  issues 
regarding access to goods and services related to the COVID-19 crisis.  

122 

 
 
 
 
10  Violence  against  women  and domestic violence  in  relation to  the Istanbul 

Convention 

10.1 General (legal) context 

10.1.1 Surveys and reports on issues of violence against women and domestic violence 

Basic data on violence against women, domestic violence and actions taken in this area 
and interventions of state bodies is collected and made available by the Central Statistical 
Office (GUS),378 the Ministry of Family, Labour and Social Policy,379 the Ministry of Justice380 
and the Police.381 It should be noted that the data officially covers only cases of violence 
reported to the competent authorities of the State. There are also many scientific studies, 
mainly criminological, on selected aspects of particular forms of violence (among others 
family  violence,382  rape,383  marital  rape,384  stalking  and  other  forms  of  emotional 
violence).385  

The  most  up-to-date  data  as  to  the  dimensions  of  the  phenomena  is  that  available  on 
Police websites, which show that in 2020, the total number of registered victims of family 
violence  amounted  to  85  575  persons,  including  62  866  women  (about  73  %),  10  922 
men (13 %) and 11 787 minors (14 %). There were 73 228 persons suspected of using 
violence, of which 66 198 (90 %) were men, 6 677 (ca. 9 %) were women and 353 (ca. 
0.5 %) were minors. There were 39 798 perpetrators under the influence of alcohol (nearly 
half of them), including 1 986 women (about 30 % of the female perpetrators), 37 781 
men (about 57 % of the male perpetrators) and 31 minors (less than 1 %). In 288 cases, 
the child was placed in a foster family or in a care and educational institution.386  

The  police  also  periodically  publish  reports  on  the  implementation  of  the  ‘Blue  Card’ 
procedure, with the data made available only for activities undertaken by the police, and 

378  ‘Informacja GUS: Przemoc wobec kobiet’ (Information of Central Statistical Office (GUS): Violence against 

Women), published: https://stat.gov.pl/obszary-tematyczne/wymiar-sprawiedliwosci/wymiar-
sprawiedliwosci/ofiary-gwaltu-i-przemocy-domowej,1,1.html. 

379  ‘Sprawozdanie z realizacji krajowego programu przeciwdziałania przemocy w rodzinie na lata 2014-2020 za 

okres od 1 stycznia do 31 grudnia 2016 r przygotowane przez Ministerstwo Rodziny, Pracy i Polityki 
Społecznej’ (The report on the implementation of the national programme of counteracting family violence) 
prepared by the Ministry of Family, Labour and Social Policy: https://www.gov.pl/attachment/734d25ab-
b8d6-4fb5-be7c-a52987275fe7. 

380  ‘Sprawozdanie z realizacji działań wynikających z Krajowego Programu Przeciwdziałania Przemocy w 

Rodzinie mieszczących się w kompetencjach Ministerstwa Sprawiedliwości od 1 stycznia 2015 roku do 31 
grudnia 2015 roku’ (The report on the implementation of the national programme of counteracting family 
violence being within the competences of the Ministry of Justice for the period from 1 January 2015 to 31 
December 2015), available at: https://www.gov.pl/attachment/90ca3b49-1bcf-4af2-ac0d-bc8faec06538.  

381  ‘Statystyka. Przemoc w rodzinie’ (Statistics for Family Violence), published: 

https://statystyka.policja.pl/download/20/361533/przemoc-w-rodzinie-2012-2020.pdf.  

382  For example: Spurek, S., Izolacja sprawcy od ofiary. Instrumenty przeciwdziałania przemocy w rodzinie 

(Isolating the perpetrator from the victim. Instruments to prevent domestic violence). Wolters Kluwer, 
Warszawa 2013.  

383  For example: Grzybek, A., (ed) ‘Przełamać tabu. Raport o przemocy seksualnej’ (Break the taboo. Report 

on sexual violence). Wydawnictwo Fundacji na rzecz Równości i emancypacji, Warszawa 2016 and Pietryk, 
R., ‘Odmowy wszczęcia i umorzenia postępowań w sprawach o zgwałcenia popełnione po zniesieniu 
wnioskowego trybu ścigania. Raport sporządzony na zlecenie Pełnomocnika Rządu ds. Spraw Równego 
Traktowania’ (Refusal to initiate and to discontinue proceedings in cases of rape committed after the 
abolition of the motion-based procedure of prosecution. Report prepared on the request of the Government 
Plenipotentiary for Equal Treatment), Warszawa 2014, http://docplayer.pl/4346718-Odmowy-wszczecia-i-
umorzenia-postepowan-w-sprawach-o-zgwalcenia-popelnione-po-zniesieniu-wnioskowego-trybu-
scigania.html. 

384  Michalska-Warias, A., ‘Zgwałcenie w małżeństwie. Studium prawnokarne i kryminologiczne’ (Marital rape. 

Criminal law and criminological study), Wolters Kluwer, Warsaw 2016.  

385  See: Woźniakowska-Fajst, D., Stalking i inne formy przemocy emocjonalnej. Studium kryminologiczne 
(Stalking and other forms of emotional violence. Criminological study), Wydawnictwo Uniwersytetu 
Warszawskiego, Warszawa 2019.  

386  Statystyka. Przemoc w rodzinie. (Statistics for Family violence), http://statystyka.policja.pl/st/wybrane-

statystyki/przemoc-w-rodzinie/50863,Przemoc-w-rodzinie.html.  

123 

 
 
 
 
 
 
 
not for activities of other entities authorised to combat domestic violence. The data shows 
that in 2020, police officers filled in 72 601 Blue Card A forms.387 

The figures indicated are on average a few percent lower than in previous years. This does 
not necessarily mean that the situation has improved. Rather, it can be presumed to be 
caused  by  less  frequent  disclosure  of  manifestations  of  violence  due  to  the  subsequent 
lockdowns accompanying the pandemic threat, generating difficulties in reporting violence 
and seeking help for it. In 2019, the Centre for Social Opinion Research (CBOS) conducted 
a survey of the scale of violence.388 It should be stressed that it is very difficult to estimate 
the scale of the phenomenon in the surveys and the percentage of respondents who admit 
they are perpetrators or victims is much lower. According to the survey data, more than 
one in five respondents (22 %) know or see women beaten by husbands or partners, 10 % 
of respondents admitted to  having been physically assaulted by their  spouse or partner 
(12 %  of women, 8  %  of men). Physical violence against a partner (at least  once) was 
reported by 8 % of respondents (12 % women, 5 % men). Every fourth person living in a 
relationship experienced a form of aggression other than physical aggression on the part 
of their partner.389 

The issue of economic violence was investigated in 2015 by the Senate's Office for Analysis 
and Documentation390 and the Institute of Public Affairs.391 The sources of information on 
economic violence in the family are police data on the interventions carried out; data from 
the  justice  system;  information  from  institutions  providing  assistance  to  the  persons 
abused by their relatives and large population opinion polls. On behalf of the Ministry of 
Labour  and  Social  Policy,  in  2010,  TNS  OBOP  –  a  market  and  public  opinion  polling 
company392 – conducted a social survey which showed that 70 % of women were victims 
of  economic  violence.  The  research  indicated  that  among  the  perpetrators  of  economic 
violence in the family, 68 % are men and 32 % are women. For women, the perpetrator 
is generally male (79 % of indications). Among the men who declared that they had been 
subjected to violence from another member of their household, 53 % indicated a man and 
47 % a woman.393 The research conducted by the Institute of Public Affairs (ISP) in 2015 
clearly  showed  that  the  perpetrators  of  economic  violence  are  men  and  the  persons 
experiencing  it  are  women  (in  the  research  conducted  by  the  ISP,  only  such  situations 
were described).394 

The  aim  of  the  research  conducted  by  the  ISP  was  to  learn  the  specificity  of  economic 
violence in relationships, its most popular forms and ways of coexistence with other types 
of  violence.  The  research  shows  that  economic  violence  rarely  takes  the  form  of  open 
blackmail.  It  coexists  in  violent  relations,  regardless  of  the  configuration  of  earnings  of 

387  https://statystyka.policja.pl/download/20/361533/przemoc-w-rodzinie-2012-2020.pdf.  
388  Przemoc i konflikty w domu ( Violence and domestic conflicts). Komunikat z badań nr 48/19. CBOS. 
Badania sondażowe (Violence and conflicts at home. Communiqué from survey No. 48/19 CBOS), 
https://www.cbos.pl/SPISKOM.POL/2019/K_048_19.PDF.  

389  Ibidem.  
390  Tracz-Dral, J.: ‘Przemoc ekonomiczna’ (Economic violence), Kancelaria Senatu. Biuro Analiz i Dokumentacji. 

Opracowania tematyczne OT – 639, 2015. 

391  Chełstowska, A., Druciarek, M., Niżyńska, A.: Przemoc ekonomiczna w związkach. Diagnoza zjawiska i 

dyskusja o przeciwdziałaniu (Economic violence in partnerships. Diagnoses and discussion on 
counteracting). Publication was prepared in the frame of the Project ‘Economic Violence – diagnosis of the 
problem and a discussion on countermeasures, part 2’, realised by Instytut Spraw Publicznych (Institute of 
Public Affairs) financially supported by the Heinrich Böll Foundation, Warszawa 2015: 
https://pl.boell.org/sites/default/files/przemoc_ekonomiczna.pdf.  

392  TNS stands for Taylor Nelson Sofres. Currently the name of the Polish brand of the company has changed 

to: TNS Polska. 

393  Tracz-Dral, J., ‘Przemoc ekonomiczna’ (Economic Violence), Kancelaria Senatu. Biuro Analiz i Dokumentacji. 

Opracowania tematyczne (Chancellery of the Senate Analytical Papers) OT – 639, 2015. 

394  Chełstowska, A., Druciarek, M., Niżyńska, A., Przemoc ekonomiczna w związkach. Diagnoza zjawiska i 

dyskusja o przeciwdziałaniu. (Economic violence in partnerships. Diagnosis and discussion on 
counteracting). Instytut Spraw Publicznych, Warszawa 2015: 
https://www.isp.org.pl/pl/publikacje/przemoc-ekonomiczna-w-zwiazkach, 
https://pl.boell.org/sites/default/files/przemoc_ekonomiczna.pdf, 
https://pl.boell.org/sites/default/files/przemoc_ekonomiczna.pdf.  

124 

 
 
 
 
 
spouses or partners. At the same time, it is the most diverse form of all types of violence, 
and  it  looks  different  in  poor  and  rich  homes.  It  is  a  systemic  phenomenon  that  stems 
from and reinforces the usual division of labour, gender roles and inequalities. Many forms 
of  economic  violence  are  difficult  to  prove  because  they  are  based  on  creating  a 
discrepancy between what the legal documents say (for example, the deeds, notary acts, 
act of division of marital property, etc.) and reality. It happens that violent partners hide 
their  income  or  property,  transfer  property  to  family  members,  or  work  illegally.  The 
purpose of such actions is, among other things, to escape from the need to share property 
with one’s wife in the event of divorce.395 

Research  on  cyberbullying  against  women  was  conducted  in  2017  by  the  Helsinki 
Foundation  for  Human  Rights.396  The  results  show  that  cyberbullying  is  a  common 
experience for many women conducting public activities on the Internet. The escalation of 
the  problem  is  facilitated  by  the  technical  ease  and  low  cost  of  attacks,  their  public 
character, anonymity or impunity of perpetrators, as well as the popular belief that verbal 
aggression is consistent with the nature of the Internet. Attacks are generally not related 
to the subject of expression, but are purely sexist in nature. Comments often concern the 
appearance,  private  and  intimate  life  of  the  attacked  persons,  reducing  women  to 
stereotypical roles, undermining the competence and intellect of the addressee. The nature 
of attacks leads to the conclusion that their aim is not polemics, but to silence women who 
speak in a public space and prevent others from undertaking public activities. 

In response to cyberbullying, women most often chose to remove the content or block the 
attacker,  from  the  options  available  on  the  social  networking  site.  Some  respondents 
documented the attacks, but rarely used the collected materials for further actions, not 
believing  in  the  possibility  of  effectively  asserting  their  rights  and  taking  action  with 
intermediaries  of  Internet  services.  Few  interviewees  decided  to  use  the  available  legal 
mechanisms,  but  the  more  frequent  choice  was  to  report  cyber-violence  to  the  police 
compared  to  filing  a  civil  suit.  An  obstacle  significantly  limiting  the  effectiveness  of 
available  legal  tools  was  the  attitude  of  law  enforcement  agencies,  which  either 
underestimated cases or were not prepared to react appropriately.397  

The research formulated recommendations concerning the need to undertake educational 
and promotional activities aimed at raising awareness both of the negative consequences 
of  cyberbullying  for  victims  and  of  the  possibility  to  hold  perpetrators  responsible  for 
actions taken on the Internet. The need to raise awareness of the police and prosecutor's 
office and their skills in combating cyberbullying was emphasised. It was also pointed out 
that the element of counteracting strongly sexist cyber-violence against women should be 
the implementation of the provisions of the Istanbul Convention of the Council of Europe 
on preventing and combating violence against women, in particular the implementation of 
the obligations arising from Article 12, i.e. taking the necessary measures to:  

‘promote the change of harmful social and cultural patterns concerning the behaviour 
of  women  and  men  and  to  conduct  activities  aimed  at  the  elimination  of 
prejudices’.398 

395  Chełstowska, A., Druciarek, M., Niżyńska, A.: ‘Przemoc ekonomiczna w związkach. Diagnoza zjawiska i 

dyskusja o przeciwdziałaniu.’ (Economic violence in partnerships. Diagnosis and discussion on 
counteracting). Instytut Spraw Publicznych, https://www.isp.org.pl/pl/publikacje/przemoc-ekonomiczna-w-
zwiazkach, https://www.isp.org.pl/pl/publikacje/przemoc-ekonomiczna-w-zwiazkach. 

396  ‘Cyberprzemoc wobec kobiet’ (Cyberbullying of women). Report by the Helsinki Foundation for Human 

Rights. The report was prepared as part of the project ‘Violence against women online’ in cooperation with 
the Heinrich Böll Foundation in Warszawa 2017. Available on the website: http://www.hfhr.pl/wp-
content/uploads/2017/12/HFPC-Cyberprzemoc-wobec-kobiet-raport-www.pdf.  

397  ‘Cyberprzemoc wobec kobiet’ (Cyberbullying of women). Report by the Helsinki Foundation for Human 

Rights. The report was prepared as part of the project ‘Violence against women online’ in cooperation with 
the Heinrich Böll Foundation in Warszawa 2017. Available on the website: http://www.hfhr.pl/wp-
content/uploads/2017/12/HFPC-Cyberprzemoc-wobec-kobiet-raport-www.pdf. 

398  ‘Cyberprzemoc wobec kobiet’ (Cyberbullying of women). Report by the Helsinki Foundation for Human 

Rights. The report was prepared as part of the project ‘Violence against women online’ in cooperation with 

125 

 
 
 
 
 
 
 
In  many  studies  on  criminal  policy,  attention  was  drawn  to  the  particularly  mild 
punishment  imposed  by  courts  on  perpetrators  of  family  violence  and  rape,  often  non-
custodial,399 and the infrequent use of restraining orders.400 Relatively lenient sentences 
were  also  imposed  for  sexual  offences,  with  a  decrease  in  2016  compared  to  previous 
years.401  In  cases  of  sexual  violence,  the  research  proved  that  existing  measures, 
protecting  victims  from  repeated  and  secondary  victimisation,  are  in  practice  seldom  – 
and often not properly – used.402  

10.1.2 Overview of national acts on violence against women, domestic violence and issues 

related to the Istanbul Convention 

The  Law  of  29  July  2005  on  counteracting  family  violence  (consolidated  text  JoL  2015, 
Item 1390) is the most important piece of legislation aimed at elimination of this form of 
gender-based violence. The law provided for a broad definition of family violence, special 
‘blue card procedure’ that is, documentation of all police and other agencies’ interventions 
in relation to family violence incidents. Since 2010, there has been an obligation for every 
community  to  establish  an  interdisciplinary  team,  serving  as  a  base  for  joint  actions  of 
organisations  counteracting  family  violence.  Special  preventive  measures  have  been 
introduced,  applied  to  the  suspect  of  such  violence  (e.g.  an  order  to  leave  the  jointly 
occupied  premises;  restraining  orders)  and  different  measures  aimed  at  protection  of 
security of victims and preventing their secondary victimisation, providing them with safe 
premises (including shelters), medical, psychological and social support (support or crisis 
centres) and free legal aid.  

The measures provided for in the Law on counteracting family violence, generally, are in 
compliance with the obligations under the IC. However, this law does not include a gender 
perspective,  nor  a  definition  of  economic  violence  and  still  lacks  certain  legal  solutions 
(e.g. emergency barring orders (Article 52)). In addition, it has to be noted that this Law 
only refers to family violence, there is no notion of gender-based violence. In 2019, two 
draft laws amending the regulations relating to family violence were presented. The first, 
prepared  by  the  Ministry  of  Family,  Labour  and  Social  Policy  was  going  in  a  completely 
opposite  direction  to  what  was  set  forth  by  the  Istanbul  Convention  and  was  quickly 

the Heinrich Böll Foundation in Warszawa 2017. Available on the website: http://www.hfhr.pl/wp-
content/uploads/2017/12/HFPC-Cyberprzemoc-wobec-kobiet-raport-www.pdf. 

399  For example, according to the Ministry of Justice, sentences with conditional suspension of prison sentences 

accounted for around 86 % of cases of ill-treatment up to 2015. After the introduction in 2015 of 
restrictions to the Penal Code in this respect, this percentage decreased, but not spectacularly – because in 
2016, it amounted to 73 % of all sentences of imprisonment. In numerical terms, it was as follows: in 
2014, the total number of sentences under Article 207 PC was 12 772, of which 12 024 were for 
imprisonment, of which 1 717 were for immediate imprisonment (that is without conditional suspension of 
execution) (14.25 %). In 2016, these figures amounted to a total number of persons sentenced under 
Article 207 PC of 10 723, of which 8 442 were sentences for imprisonment, including immediate 
imprisonment of 2 275 (26.94 %).  

400  According to the data of the Ministry of Justice, in 2014, the courts ruled prohibitions from approaching the 
victim for 595 (5.76 %) sentenced persons for family violence, while in 2015, 965 (10.38 %) and in 2016, 
836 (13.55 %) had such a measure imposed. An order to leave the premises, in 2014 was imposed on 
perpetrators in 522 (5.05 %) of all sentences; in 2015, respectively, on 574 (6.18 %) and in 2016, on 423 
(6.85 % of sentenced persons).  

401  According to the data of the Ministry of Justice, in the years 2007-2016, between 644 and 887 convictions 

for rape (Article 197 PC) are recorded annually. Penalties of imprisonment up to one year constituted about 
10 % of all sentences for rape; penalties from 2 to 3 years, about 20 %; penalties from 3 to 5 years also 
about 20 %; penalties from 5 to 8 years, about 6-7 %; penalties in the range of 8-10 years constituted 
about 2 % of sentences; while penalties above 10 years oscillated between 0-1 % of all sentences. 
Compared to previous years, in 2016, there was an increase of about 8 % in sentences pronounced for up 
to one-year imprisonment, with a corresponding decrease in sentences of between one and two years. The 
remaining sentences oscillate at the level of previous years.  

402  Cf.: Pietryk, R., 'Odmowy wszczęcia i umorzenia postępowań w sprawach o zgwałcenia popełnione po 

zniesieniu wnioskowego trybu ścigania.' (Refusal to initiate and discontinue proceedings in cases of rape 
committed after the abolition of the motion-based procedure of prosecution). Report prepared on behalf of 
the Government Plenipotentiary for Equal Treatment, Warszawa 2014, http://docplayer.pl/4346718-
Odmowy-wszczecia-i-umorzenia-postepowan-w-sprawach-o-zgwalcenia-popelnione-po-zniesieniu-
wnioskowego-trybu-scigania.html.  

126 

 
 
 
 
 
withdrawn.403 In replacement, a new Law404 was prepared by the Ministry of Justice. On 
11  March  2020,  the  Sejm  (the  lower  house  of  the  Polish  Parliament)  received  the 
Government’s bill to amend the Code of Civil Procedure and certain other acts concerning 
the introduction into the legal order of comprehensive solutions to quickly isolate a person 
affected by violence from the perpetrator of violence in situations where they pose a threat 
to the life or health of the household members. The new legislation introduces a special 
free of charge proceeding, in which the court may issue a special security order to ensure 
the  safety  of  a  person  affected  by  family  violence  (Articles  7552-7554  of  the  CCP)  in  a 
shorter timeframe than previously, due to shortened time limits and the introduction of a 
separate method for delivering of court documents. Moreover, the draft provides for the 
first time, that a respective application to the court may be preceded by an order issued 
by the police or, in the case of professional soldiers, by the Military Gendarmerie, ordering 
perpetrators of violence to leave the premises immediately, for a period of up to 14 days 
and prohibiting them to approach their cohabitants (at a specified distance) for that period. 
This  order  may  later  be  extended  by  the  court  through  a  security  order  for  a  specified 
period  of  time.  The  law  was  passed  on  30  April  2020,  signed  by  the  President  on 
19 May 2020 and it entered into force six months after its announcement.  

The  Law  is  in  compliance  with  the  Istanbul  Convention  and,  in  general,  meets  the 
expectations of experts and feminist NGOs engaged in combating gender-based violence. 
However, this legislation also provides grounds for some disappointment, as it does not 
provide for the possibility of extending such a ban to other ways of contacting the victim 
of violence. 

With regard to other forms of gender-based violence, general provisions of the Penal Code 
(PC) and Code of Criminal Procedure (CCP) have to be applied. Among the most important 
provisions are those relating to rape (Article 197 PC), which consists of two main forms 
(rape, in which the substantial element is penetration in all possible configurations, and 
other  sexual  abuse  –  both  requiring  proof  of  the  offender’s  use  of  violence,  threat  or 
deceit); sexual harassment which resulted in sexual intercourse (Article 199 PC); human 
trafficking  for  sexual  exploitation  (among  others)  (Article  189a  PC)  and  stalking 
(Article 190a PC introduced by the Law of 25 February 2011, JoL No. 72, Item 381). The 
PC’s definitions of those crimes more or less correspond with elements of crime provided 
for in the Istanbul Convention: more, e.g. in the case of human trafficking and stalking; 
less,  for  instance,  as  concerns  the  definition  of  rape.  It  should  be  noted  that  the  rape 
provisions of the Penal Code (PC) have been partially modified before ratification of the 
Convention;  however,  these  amendments  have  clearly  been  influenced  by  this  legal 
document. In particular, the prosecution upon  the initiative of the rape victim has been 
altered to prosecution ex officio (by the Law of 13 September 2013, JoL 2013 Item 849, 
amending Article 205 PC).405 At the same time, in the Code of Criminal Procedure (CCP), 
special procedures of examining victims of sexual offences have been introduced, which 
are supposed to prevent their secondary victimisation (Articles 185c, 185d CCP). Similar 
protective measures existed before, with  regard to victims and witnesses of sexual and 

403  This draft law proposed, among other things, changes in the definition of domestic violence which would 

have as a result that only recurring acts of violence would be considered as constituting domestic violence, 
thus all forms of protection and assistance to the victims provided for in the law, would not apply to one-
time cases. Also subject to suggested change was the procedure of issuing the so-called Blue Card, which 
could be initiated, among others, by the police in the event of discovering cases of domestic violence. In 
the draft, the possibility of initiating this procedure was made dependent on the victim's consent. In 
response to heavy criticism on these changes from experts, already on 3 January 2019, the Prime Minister 
withdrew this proposal, assuring the public that all ‘dubious records’ will be eliminated. Also announced was 
the resignation of the deputy minister responsible for the preparation of this draft at the Ministry of Family, 
Labour and Social Policy. http://wyborcza.pl/7,75398,24327192,ministerstwo-rodziny-projekt-ustawy-o-
przemocy-w-rodzinie-zostal.html. 

404  Draft of the law with reasoning. Druk Sejmowy (Sejm print) No. 1653 

http://orka.sejm.gov.pl/Druki8ka.nsf/0/B7BBC29AF503D623C125814500365055/%24File/1653.pdf. 

405  In the Polish criminal system, usually prosecution of criminal proceedings is initiated ex officio. However, in 

some types of offences, criminal proceedings may only be initiated on the initiative of the victim. 

127 

 
 
 
 
domestic violence, under the age of 15 (Articles 185a, 185b CCP).406 The last development 
of  the  victim's  protective  legislation  is  the  Law  of  15  June  2018  (JoL  2018  Item  1467) 
amending  the  Law  of  5  August  2015  on  free  legal  aid,  citizens’  counselling  and  legal 
education  (JoL  2015  Item  1255  ),  which,  while  providing  for  broad  possibilities  for  free 
pre-trial  mediation,  explicitly  excludes  such  mediations  in  cases  of  violence  in  the 
relationship  between  the  parties,  which  is  in  line  with  Article  48  of  the  Convention. 
However,  there  is  still  no  such  prohibition  in  the  Penal  Code  and  studies  indicate  that 
mediation is still relatively common in domestic violence cases.407 

10.1.3 National provisions on online violence and online harassment 

Polish  law  does  not  provide  for  any  specific  provisions  on  online  violence  and  online 
harassment. For such cases the general provision may apply, depending on the content of 
the post. For instance: Article 212 PC, concerning defamation, or Article 216, concerning 
public  insults.  In  both  cases,  the  offender  who  commits  the  offence  by  means  of  mass 
communication is subject to a more severe penalty. This may include the qualification of 
Articles: 190 (threats), 190a PC (criminalising stalking) or, exceptionally,  Article 207 PC 
(on maltreatment), which might not only be physical but also psychological and emotional; 
however,  the  latter  provision  can  only  apply  if  there  is  a  relationship  of  dependence 
between the offender and the victim. Article 191a of the PC on revenge porn (violation of 
sexual  intimacy  by  disseminating  the  image  of  a  naked  person)  may  also  apply,  as  the 
dissemination  usually  occurs  online.  It  is  worth  noting  that  under  Article  257  PC, 
concerning insulting another person or group of persons because of their national, ethnic, 
racial,  religion  or  lack  of  religious  affiliation,  or  Article  256  PC  sanctioning  the 
encouragement for religious or ethnic hate, may be punished (more severely than in the 
case of an ordinary insult or encouragement for any other crime). A legislative proposal 
tabled  some  time  ago  by  the  Polish  Association  of  Anti-discrimination  Law,  aimed  at 
extending the list of grounds in these provisions to include gender and sexual orientation, 
has not been taken into account.  

The perpetrator of cyberviolence may be held liable for violation of Article 107 of the Code 
of  Contraventions (malicious disturbance  of another person), and  regardless of criminal 
liability may also be held liable for a violation of personal goods under the Civil Code. To 
a limited extent, it is conceivable to apply the provisions of the Labour Code or the Anti-
Discrimination Law on cyber sexual harassment. As for the liability of service providers of 
the Internet, e.g. owners of the portal, it depends on whether this provider was aware of 
the illegal nature of the content of the entry (post) and whether, in the event of notification 
of such content, it will immediately prevent access to this data (Article 14(1) of the Act on 
the provision of electronic services).408 The problem of who bears the burden of proof that 
the provider knew about  the illegality of the post (entry) was resolved by the Supreme 
Court in the judgment of 30 September 2016 (I CSK 598/15), ruling that, in principle, it 
rests with the owner of the portal. In the opinion of the authors of the  report on cyber-
violence  against  women,  law  enforcement  agencies  do  not  make  sufficient  use  of  the 
possibilities  provided  for  by  law  to  combat  crimes  of  this  type,  while  not  following  the 
special  recommendations  contained  in  the  Guidelines  concerning  the  conduct  of 
proceedings for hate crimes, issued by the Prosecutor General in 2014.409 

406  https://pozytywnezmiany.org/wp-content/uploads/2019/02/RAPORT-Art.2017-KK.pdf. 
407  See: Zielińska, E., Mediacja w sprawach karnych o przemoc w rodzinie – skala i efektywność w praktyce 
polskiego wymiaru sprawiedliwości (Mediation in criminal cases related to family violence. Scale and 
effectiveness in practice of the Polish criminal justice system), Instytut Wymiaru Sprawiedliwości, 
Warszawa 2017. https://iws.gov.pl/wp-content/uploads/2018/08/IWS_Zieli%C5%84ska-E._Mediacja-w-
spr.-karnych-o-przemoc-w-rodzinie.pdf.  

408  Law of 18 July 2002, unified text JoL 2019 Items 123 and 730.  
409  Cf.: https://pk.gov.pl/wp-content/uploads/2014/03/4e331e3a170f1719e3f846b06a2c5f7d.pdf. 

128 

 
 
 
 
 
 
 
 
10.1.4 Political and societal debate 

The ratification of the Istanbul Convention has been preceded by a long-lasting debate. 
Most  controversy in  Poland  was caused by the fundamental concepts  of the Convention 
(stemming from the results of feminists’ criminological research) such as: the reference 
to violence against women, the reference to gender discrimination, to structural character 
of  violence  against  women  (motive  9  of  the  Preamble)  and  obligations  deriving  from 
Article 12 of the IC (e.g. in particular, the obligation to eliminate harmful sex and gender 
stereotypes).  The  last  point  of  critics  was  particularly  surprising,  since  such  obligation 
already derived from CEDAW convention, ratified by Poland in 1980. 

After  the  Prawo  i  Sprawiedliwość  party  (Law  and  Justice  party  –  PiS)  took  over  the 
government  in  November  2015,  it  started  to  fulfil  its  electoral  promises  and  initiated 
preparations  for  the  withdrawal  of  ratification  documents  (which  was  a  fact,  despite 
consequent  denials  of  the  Government).  Such  withdrawal  had  been  announced  by  the 
President multiple times. A very intense reaction from women’s circles, as well as critical 
comments from abroad, caused the PiS Government to pause those actions, at least for 
now.  However,  there  is  no  political  will  to  accept  the  basic  principles  of  the  Istanbul 
Convention and to properly implement its provisions. Symptomatic of this is the interview 
given by the Minister for Family, Labour and Social Policy – Ms Rafalska, who is responsible 
for the policy related to family violence. In this interview, in the context of the need for 
the modification of the Polish legislation after ratification of the Istanbul Convention, she 
said: 

’changes  are  needed  which,  on  the  one  hand,  will  increase  the  safety  of  people 
suffering  violence  and,  on  the  other  hand,  allow  to  keep  the  subjectivity  and 
autonomy of the family’.410  

Such a statement, being a specific kind of contradiction in adiecto, proves that she denies 
giving  priority  to  the  protection  of  the  safety  of  the  individual  family  member  who  is  a 
victim of domestic violence (which is one of the leading principles of the Convention) over 
the protection of the autonomy of the family as a social group.  

On 31 December 2018, on the website of the Ministry for Family, Employment and Social 
policy, the governmental draft law appeared, amending the Law of 2005 on counteracting 
family violence, which should be considered as a huge backwards step in the protection of 
victims of gender-based violence.411 

The controversial amendments included: a change of the name of the Act, by replacing 
the term ‘violence in the family’ with the term ‘domestic violence’; significant alterations 
of the definition of family (domestic) violence; and change of the procedure of issuing the 
so-called Blue Card (a special protocol documenting violence and  the action undertaken 
on it by the criminal justice system), which could be initiated, among others, by the police, 
in  the  event  of  discovering  cases  of  domestic  violence.412  It  should  be  emphasised  that 
although  the  Istanbul  Convention  also  utilises  the  term  ‘domestic  violence’,  one  has  to 
keep in mind, however, that the aim of this change in Poland was not to extend the scope 

410  Cited after Ambroziak, A., Konwencję przyjęto, ale PIS nie realizuje jej postanowień (‘Convention is ratified 
but PIS-party does not implement its provisions’). https://oko.press/rafalska-trzeba-odroznic-konflikt-
malzenski-przemocy-rodzinie-zapomina-o-konwencji-antyprzemocowej/.  

411  http://wyborcza.pl/7,75398,24327192,ministerstwo-rodziny-projekt-ustawy-o-przemocy-w-rodzinie-

zostal.html, https://www.tvn24.pl/wiadomosci-z-kraju,3/jednorazowa-przemoc-nie-bylaby-przemoca-
projekt-nowelizacji-ustawy-o-przemocy-w-rodzinie,896663.html, 
http://wyborcza.pl/7,75398,24344225,morawiecki-zdymisjonowal-wiceminister-odpowiedzialna-za-
projekt.html.  

412  In response to heavy criticism from experts, already on 3 January 2019, the Prime Minister withdrew this 

proposal, assuring the public that all ‘dubious records’ will be eliminated. Also announced was the 
resignation of the Deputy Minister of the Family, Labour and Social Policy, responsible for the preparation of 
the draft. 

129 

 
 
 
  
 
 
 
 
of application of the law, but rather to avoid negative perceptions of the traditional concept 
of family t: according to the currently prevailing ideology, family is to be maintained on a 
pedestal and protected, regardless of circumstances. Also, other proposed changes of the 
law are clearly in opposition to international standards. For example, the wording of the 
definition  of  domestic  violence,  namely  ‘one-time  or  repetitive,  intentional  action  or 
omission, violating the law or personal goods’,  was changed by deleting the word  ‘one-
time’. As a result, domestic violence would only be considered as recurring acts of violence, 
thus all forms of protection and assistance to the victims provided for in the law, would 
not apply to one-time  cases.  The procedure of  issuing the so-called Blue Card was also 
subject  to  change.  In  the  draft,  the  possibility  of  initiating  this  procedure  was  made 
dependent  on  the  victim’s  consent.  This  change  did  not  take  into  account  that  in  most 
domestic violence cases, the victims are intimidated by the perpetrators, hence the lack 
of consent for initiating the ‘Blue Card’ procedure may arise from fears for the victim’s life 
or health, or that of their children.  

The immediate response of the Prime Minister to criticism regarding the project should be 
assessed positively. However, the fact that this project has been prepared and published 
in such a way on government websites, shows that the Government does not have any 
comprehensive policy as to how to effectively deal with gender-based violence. In addition, 
in  the  authors’  opinion,  it  proves  that  within  the  Ministry  of  Family,  Labour  and  Social 
Policy, this problem is being handled either by incompetent persons, who are not aware 
of  the  international  standards  in  this  field,  or  –  more  likely  –  by  the  so-called  experts 
actively engaged in the battle against all manifestations of phenomena which they describe 
as ‘gender ideology’. Hence, with this assumption, the project should be considered as an 
attempt to execute the electoral declarations of the ruling party to prevent the Istanbul 
Convention from being applied, despite its ratification by the Parliament of the previous 
term. The work on the modifying of the Law on counteracting domestic violence continues 
in  the  Ministry  of  Family,  Labour  and  Social  Policy;  however,  it  seems  that  nobody 
interested in having amendments to the law passed any time soon.413 

The  attacks  on  the  Convention  are  still  continuing.  Catholic  circles  (e.g.  Ordo  Iuris 
Institute)  running  the  campaign  called  ‘zatrzymajgender’  (‘stopgender’)  criticise  the 
current  government,  in  particular  the  Government  Plenipotentiary  for  Civil  Society  and 
Equal Treatment, for not taking sufficient actions aimed at withdrawal from ratification of 
the Convention.414 

Many discussions on the real extent of violence against women took place in Poland after 
the publication of the FRA report,415 which showed that the level of this type of crime in 
the country is much lower than in other EU Member States. This discourse started with 
the fact that the government used the results of this report as an argument to support the 
thesis that in Poland, violence against  women is a marginal phenomenon and therefore 
there is no need to intensify the activities of the State and its authorities in this area. In 
the  discussion,  criticising  this  position,  it  was  argued  that  higher  rates  of  women's 
victimisation in Scandinavian countries or France, in comparison with the very low rates 
in Poland, are a result of the higher level of women's awareness in those countries and 
their ability to define what behaviour is and should be  considered  as  violence, and less 
tolerance for various forms of harassment, especially stalking or sexual harassment.416 

413  This results from the response of the Minister of Family, Labour and Social Policy to the Commissioner for 

Human Rights’ question on this matter – while describing the implementation by the Ministry of the tasks of 
this Act in the field of victim’s assistance, referred the draft to the Minister of Justice. 
https://www.rpo.gov.pl/sites/default/files/Odp%20MRPiPS%20ws%20przemocy%20domowej%2C%201%2
0kwietnia%202018.pdf. 

414  http://www.pch24.pl/genderowa-konwencja-juz-dobra--zaskakujace-stanowisko-rzadu,65740,i.html. 
415  Violence against women: an EU-wide survey. Main results. European Union Agency for Fundamental Rights. 

Luxembourg 2015. 

416  See for example: Piotrowska, J., Polska z najlepszym na świecie wskaźnikiem w obszarze przemocy (Poland 

with the world's best indicator in the area of violence). https://feminoteka.pl/polska-z-najlepszym-w-
europie-wskaznikiem-dotyczacym-przemocy/#:~:text=Polska%20z%20najlepszym%20w%20Europie%20

130 

 
 
 
 
 
 
The COVID-19 pandemic has had a significant impact on the incidence of violence and the 
possibilities  of  countering  it.  There  is  a  public  debate,  involving  both  civil  society 
representatives and representatives of local and central government, about the growing 
threat of violence and the social needs in this area. In the ongoing discussion in the media, 
it is clearly highlighted that the operational changes related to COVID-19 increase the risk 
of  violence  against  women.  In  particular,  the  risk  of  partner  violence  is  increased  by 
COVID-19 counter measures in the form of recommendations or, in the case of lockdown 
or quarantine, the obligation to stay in the home. In this situation, family members are 
forced  to  spend  more  time  together,  while  facing  additional  stress  and  potential  loss  of 
livelihood.  Perpetrators  may  use  the  constraints  of  the  COVID-19  pandemic  to  exercise 
power  and  control  over  their  female  partners  to  further  limit  their  access  to  services, 
assistance  and  psychosocial  support  –  formal  and  informal.  Women  may  have  reduced 
contact with family and friends who can provide them with support and protection from 
violence. As resources shrink, women (many of whom remain informal wage workers) may 
also be more vulnerable to economic violence.417 

Despite the state  of  pandemic in force in the  country, the Anti-Crisis Shield418 does not 
relieve police officers from the obligation to perform duties specified in the Act of 6 April 
1990  on  the  Police.  Conducting  interventions  related  to  domestic  violence,  even  with 
regard to persons under quarantine, is carried out at all times, taking special precautions 
and  applying  the  Guidelines  of  the  Chief  Sanitary  Inspector  of  the  Ministry  of  Internal 
Affairs and Administration for the Police in this respect.419 It is worth noting, however, that 
as  of  March  2020  police  officers  have  many  additional  tasks  related,  among  others,  to 
controlling  citizens  in  quarantine  and  securing  numerous  demonstrations  and  social 
protests, hence it can be provisionally assumed that they will be sent to cases of domestic 
interventions less frequently. This assumption is confirmed by media signals.420 

Official figures show that the number of Blue Cards created in 2020 was noticeably lower 
than in previous years. However, it does not mean that the number of acts of domestic 
violence is decreasing. Representatives of aid organisations run by NGOs emphasise the 
increase in the number of reports reaching them. For example, the Women’s Rights Centre 
in March 2020 alone (when the official number of Blue Cards dropped by 1 000 compared 
to the comparable period last year) recorded 50 % more calls to the helpline than in the 
same period last year. However, there was a third less advice and consultations that were 
conducted  remotely  due  to  the  pandemic.  This  was  probably  due  to  the  fact  that  in  a 
situation of forced confinement at home in the company of the perpetrator of violence, it 
was more difficult for victims to use this form of help.421 

The  pandemic  state  introduced  on  the  territory  of  the  Republic  of  Poland  in  connection 
with the spread of the COVID-19 virus did not affect the scope and possibilities of providing 
assistance and intervening in families experiencing violence, including those covered by 
the ‘Blue Cards’ procedure. Due to the introduced sanitary and organisational restrictions, 
the  accessibility  of  the  activities  of  specific  social  services  involved  in  counteracting 
violence decreased. In unpublished instructions of voivodes issued for organisational units 
of social assistance, visits of social workers and family assistants in the field were limited 
to the necessary minimum, and in many centres additional  organisational and technical 
restrictions  were  introduced,  which  limited  direct  contact  of  wronged  persons  with 
specialists. Therefore, it is recommended that victims should be able to contact employees 

wska%C5%BAnikiem%20w%20obszarze%20przemocy,-31%20marca%202018&text=%C5%9Aredni%20e
uropejski%20wska%C5%BAnik%20dla%20przemocy,z%20wynikiem%2044%2C2%20punkt%C3%B3w.  

417  http://kampania16dni.pl/przemoc-i-covid-19/. 
418  Act of 2 March 2020 on special solutions related to preventing, counteracting and combating COVID-19, 
other infectious diseases and crisis situations caused by them (JoL of 2020, item 1842, as amended, 
hereinafter referred to as Anti-Crisis Shield 1.0. 

419  https://prawo.gazetaprawna.pl/artykuly/1472020,przemoc-domowa-koronawirus-statystyki.html. 
420  https://wiadomosci.onet.pl/kraj/koronawirus-przemoc-domowa-w-czasie-pandemii-jest-coraz-

gorzej/ky984b3.  

421  https://prawo.gazetaprawna.pl/artykuly/1472020,przemoc-domowa-koronawirus-statystyki.html. 

131 

 
 
 
 
 
of  centres  more  extensively  than  before,  using  telephone  or  other  electronic  means  of 
communication.422  

A number of alarming signals about the consequences of isolation and quarantine during 
the coronavirus outbreak on the sense of security of people at risk of domestic violence 
have reached the Ombudsman.423 At the beginning of the pandemic, the RPO appealed to 
the Ministry of Labour and Social Policy and the Chief of Police to ensure proper functioning 
of the support system for victims of domestic violence. In his speech to the Ministry of the 
Interior and Administration of Public Health, the RPO submitted, among other things, his 
comments on the special law on the coronavirus. He stressed that the lack of inclusion in 
the catalogue of the ‘urgent cases’, to be recognised by the courts during the pandemic, 
involving the ordering of the perpetrator of domestic violence to vacate the premises and 
providing for suspension of the execution of enforcement titles concerning the eviction of 
perpetrators  of  domestic  violence,  may  contribute  to  an  increase  in  the  risk  to  life  and 
health of people experiencing domestic violence.424 

In her reply to the RPO’s appeal, the Minister of Family, Labour and Social Policy stressed 
that  the  Ministry  was  aware  that  the  situation  of  alienation  related  to  the  state  of  the 
pandemic could be particularly difficult for persons experiencing family violence, especially 
because the restrictions related to the introduced state of the pandemic forced changes in 
the method and forms of assistance provided. In its reply, the MRPiPS presented a list of 
actions  taken  to  counteract  violence  in  the  current  pandemic  situation.  The  Ministry’s 
activities include: 

• 

• 

• 

• 

Elaboration and submission to local governments of an instruction on the manner of 
organisation of establishments providing shelter, such as: specialist support centres 
for victims of family violence, homes for mothers with minor children and pregnant 
women, crisis intervention centres, support centres providing 24-hour residence, in 
relation to the spread of the SARS-CoV-2 virus.  
Developing an instruction on how to organise Interdisciplinary Teams and Working 
Groups and how to carry out the ‘Blue Cards’ procedure, and for social workers to 
work  with  families  who  manifest  care  and  upbringing  problems  in  connection  with 
the SARS-CoV-2 virus pandemic. 
Letter to provincial offices requesting the creation of databases on current  support 
for people experiencing family violence at the local level (facilities and counselling).  
Activities  to  promote  the  ‘Your  Umbrella’  app,  targeted  at  people  experiencing 
domestic  violence.  The  free  mobile  application  ‘Your  Umbrella’  is  a  practical  and 
effective  tool  for  obtaining  support  and  necessary  information  for  people 
experiencing  domestic  violence.  Among  other  things,  the  app  enables  discreet 
contact with a pre-configured e-mail address, as well as the possibility to quickly dial 
an  emergency  phone  number  in  the  case  of  an  emergency,  and  also  contains 
information  that  can  be  helpful  to  abused  persons,  e.g.  in  the  field  of  legal 
remedies.425 

10.2 Ratification of the Istanbul Convention 

Poland  has  ratified  the  IC  with  the  Law  of  6  February  2015  (JoL  2015  Item  398)  with 
several reservations and declarations.  

The  reservations  concern:  Article  30,  Paragraph  2  (compensation)  of  the  Convention, 
which  in  Poland  shall  be  applied  solely  with  regard  to  victims  who  are  citizens  of  the 

422  Maczyński Paweł, Realizacja procedury przeciwdziałania przemocy w rodzinie w czasie epidemii, 

https://sip.lex.pl/#/publication/470131786.  

423  https://www.rpo.gov.pl/pl/content/mrpips-do-rpo-o-dzialaniach-ws-przeciwdzialania-przemocy-domowej.  
424  https://www.rpo.gov.pl/pl/content/osoby-doswiadczajace-przemocy-domowej-znalazly-sie-w-sytuacji-

zagrozenia-zycia. 

425  https://www.rpo.gov.pl/pl/content/mrpips-do-rpo-o-dzialaniach-ws-przeciwdzialania-przemocy-domowej.  

132 

 
 
 
 
 
 
 
 
Republic of Poland or the European Union and in accordance with a procedure provided for 
by national law;  and Article 44 (jurisdiction) in relation to  which the Republic of Poland 
reserves the right not to apply the Convention when the offence is committed by a person 
whose habitual residence is the Republic of Poland. In addition, the Republic of Poland has 
made  the  reservation  that  Article  55,  Paragraph  1  (ex  officio  proceedings)  of  the 
Convention shall not be applied in respect of Article 35 regarding minor offences and that 
Article 58 of the Convention (limitations) shall not be applied in respect of Articles 37, 38 
and 39 of the Convention. Additionally, Poland puts forward two declarations: Firstly, that 
the  Republic  of  Poland  recognises  the  need  to  interpret  Article  18,  Paragraph  5  of  the 
Convention in accordance with international agreements to which it is a Party and directly 
applicable normative acts of international organisations, to which the Republic of Poland 
submitted the competence of the state authority in some cases. Accordingly, the Republic 
of  Poland  shall  provide  consular  protection  only  to  Polish  citizens  and  nationals  of  the 
Member States of the European Union, who do not have access to a diplomatic or consular 
post in the territory of a third country, on such terms as Polish citizens. Furthermore, in 
accordance with the universally accepted principles  of international law, the Republic of 
Poland does not grant consular protection to nationals of the host state. The consul of the 
Republic of Poland can take actions of consular protection only by the measures provided 
for by international law on consular relations. Secondly, Poland maintained the declaration 
handed over to the Deputy Secretary General at the time of signature of the Instrument 
on  18  December  2012,  in  which  the  Republic  of  Poland  declares  that  it  will  apply  the 
Convention in accordance with the principles and the provisions of the Constitution of the 
Republic of Poland. 

On 23 January 2021, the Law of 20 January 2021 on amending the scope of the Council 
of Europe Convention on preventing and combating violence against women and domestic 
violence, drawn up in Istanbul on 11 May 2011, entered into force (JoL of 2021, item 149). 
It authorised the President of the Republic of Poland to amend the scope of the Istanbul 
Convention  by  modifying  the  reservation  made  on  the  basis  of  Article 78(2)  of  the 
Convention to Article 30(2) and the reservation made under the second indent of Article 
78(2) to Article 44(1)(e), as well as to extend the reservation to Article 55, for a further 
period  of  five  years,  starting  from  1  February  2021  and  to  withdraw  the  reservation  to 
Article 58. 

The Istanbul Convention has been in force since 7 April 2015, hence it is hard to associate 
any  previous  legal  changes  with  this  document,  even  if  some  of  them  also  meet  the 
Convention’s  requirements.  Such  changes  in  the  Polish  Code  of  Criminal  Procedure  are 
introduced, among others, by the law of 28 November 2014 on protection and support for 
victims and witnesses (JoL 2015 Item 21). The Law on free legal aid, citizens’ counselling 
and  legal  education  of  5  August  2015  (unified  text  JoL  2019  Item  294)  also  includes 
provision for legal aid  for victims of gender-based violence in situations where they are 
unable to afford such legal aid. The law implements Directive 2012/29/EC of 25 October 
2012, establishing minimum standards on the rights, support and protection of victims of 
crime, 
and 
Directive 2011/99/EC  of  13  December  2011  on  the  European  protection  order427  which 
provides for similar requirements to the IC, with regard to protection of those persons. 

Framework  Decision 

replacing  Council 

2001/220/JHA426 

and 

On 27 July 2020 the Minister of Justice and head of the faction Solidary Poland submitted 
to the Minister of Family, Labour and Social Policy the request to initiate the denunciation 
procedure regarding the Istanbul Convention, indicating that ‘in the ideological layer it is 
incompatible with the Polish Constitution and the Polish legal order.’428 Three days later, 
on  30  July  2020,  the  Prime  Minister  Mateusz  Morawiecki  submitted  a  request  to  the 
Constitutional  Tribunal  to  examine  the  compatibility  of  Article  6,  Article  12,  Article  14, 

426  OJ L 315, 14.11.2012, pp. 57-73. 
427  OJ L 338, 21.12.2011, pp. 2-18. 
428  https://prawo.gazetaprawna.pl/artykuly/1487379,do-trybunalu-konstytucyjnego-wplynal-wniosek-

premiera-ws-konwencji-stambulskiej.html.  

133 

 
 
 
 
 
Article 18, Article 49(2), and Article 60 of the Istanbul Convention with specified articles 
of  the  Constitution  of  Poland.  Although  the  ongoing  dispute  involves  legal  issues,  the 
problem in fact lies in the sphere of values and ideology. The proposal accuses the Istanbul 
Convention  of:  ‘undermining  the  legal  order,  that  it  has  an  ideological  basis,  that  it 
incorrectly defines the real sources of violence against women and does not provide for 
effective tools to combat domestic violence.’429 

The actions of the ruling party are of deep concern and raise fears of further weakening 
the real protection of women’s rights. Regardless of the further fate of the motion, it is 
very content and the way it was formulated, referring not to the law but to ideology, not 
meeting  formal  requirements,  indicating  the  scope  of  the  appeal,  which  is  beyond  the 
competence  of  the  Constitutional  Tribunal,  raises  deep  concerns  about  the  state  of  the 
Polish rule of law.  

429  https://prawo.gazetaprawna.pl/artykuly/1487379,do-trybunalu-konstytucyjnego-wplynal-wniosek-

premiera-ws-konwencji-stambulskiej.html.  

134 

 
 
 
11  Compliance  and  enforcement  aspects  (horizontal  provisions  of  all 

directives) 

11.1 General (legal) context  

11.1.1 Surveys  and  reports  about  the  particular  difficulties  related  to  obtaining  legal 

redress 

No  in-depth  scientific  research  has  been  identified  related  to  the  difficulties  faced  by 
victims  of  discrimination  in  trying  to  assert  or  vindicate  their  rights.  The  compilation  of 
some of the judicial statistics on all anti-discrimination cases and some of their aggregated 
thematic studies make it possible to identify some of these difficulties (without, however, 
taking  into  account  the  specificities  of  gender  discrimination  cases).  The  monitoring 
reports of non-governmental organisations also provide some knowledge on this subject. 
In  particular,  it  is  worth  mentioning  here  the  studies  of  the  Polish  Society  for  Anti-
Discrimination Law.430  

The  analysis  of  available  statistical  data  and  estimates  shows  that,  in  general,  court 
proceedings  in  cases  of  discrimination  are  relatively  few,  especially  considering  that 
surveys  of public  opinion show, that  about 35 %  of Poles  feels discriminated against in 
work.431 According to the statistics gathered by  the Ministry of Justice, in the five years 
between 2015 and 2020, the overall number of all cases regarding damages for different 
forms  of  discrimination  conducted  in  regional  and  in  district  courts  did  not  exceed  400 
cases per year, and a clear downward trend was observed in comparison with e.g. 2012.432 
In addition, statistics prove that victims can rarely count on winning in courts. In 2013-
2018,  only  in  one  in  five  discrimination  cases  did  the  courts  grant  a  victim's  claim  for 
special compensation. It is characteristic that this ratio has not changed significantly over 
the years. The number of cases in which an allegation of discrimination against a worker 
has been confirmed by a court was equal to the number of dismissed cases, which means 
that  the  winner  was  only  every  second  claimant.  The  chances  of  obtaining  financial 
compensation for discrimination in court are as small as in the case of mobbing, despite 
the fact that only in the discrimination cases there is a shift of burden of proof. It is worth 
noting, however, that if financial compensation for discrimination is already awarded, the 
average amount of it per person is higher than e.g. nine years ago.433 

In April 2014, the State Labour Inspectorate (PIP) published the results of its investigation 
into the layoffs of persons returning from maternity, paternity, and parental leave and the 

430  See for instance Bogatko, K., Drabarz, A., Śmiszek, K., Przeciwko dyskryminacji poradnik prawny 

(Preventing discrimination. Legal handbook), Warszawa 2013. 
http://www.ptpa.org.pl/site/assets/files/1029/poradnik_procesowy_rownosc_lw0t_info.pdf; Bogatko, K., 
Wieczorek, M., Sędziowie wobec dyskryminacji (Judges facing discrimination), 
http://www.ptpa.org.pl/site/assets/files/1029/sedziowie_wobec_dyskryminacji_wieczorek_bogatko.pdf; 
Kędziora, K., Śmiszek, K., Wybrane orzecznictwo sądów krajowych i międzynarodowych w sprawach o 
dyskryminację (Selected jurisprudence of national and international courts in discrimination cases), Warsaw 
2013, http://www.ptpa.org.pl/site/assets/files/1029/wybrane_orzecznictwo_rownosc_kqed_info.pdf. 

431  https://www.gazetaprawna.pl/artykuly/1108547,adp-35-proc-pracownikow-doswiadczylo-

dyskryminacji.html. Study has been conducted in 2017 on the representative group of 9908 respondents by 
the ADP. The results published in the report: The Workforce View in Europe 2018, 
https://www.adp.pl/assets/vfs/Domain-3/Workforce-View-2018/PL/ADP-Workforce-View-2018-PL.pdf.  
432  For example, in all three groups of cases related to discrimination in which statistics are collected (i.e. with 

regard to cases and adjudged damages under Article 183d of the LC, cases of sexual harassment and 
violation of the prohibition of discrimination under Article 113 of LC), the number of cases on a given day in 
regional and in district courts (acting as first instance) in 2015 amounted to a total of 343 cases; in 2016 to 
452 cases; in 2017 respectively to 284. Own calculations on the basis of annual reports of the Ministry of 
Justice. See Ministry of Justice ‘statistics, annual reports on labour law and insurance. Records of cases. 
Section 1.1.2 cf.: Ministry of Justice. 

433  https://serwisy.gazetaprawna.pl/praca-i-kariera/artykuly/1091941,sad-odszkodowanie-z-tytulu-

dyskryminacji-dla-pracownika.html. 

135 

 
 
 
 
 
 
 
observance of other employee rights, including those related to childcare.434 According to 
the  analysis  of  PIP  in  the  years  2012–2013,  employers  usually  respected  provisions 
protecting the continuity of employment of pregnant women and persons returning from 
maternity  leave.  Evidence  of  this  is  the  fact  that,  out  of  596  inspections  performed  in 
various enterprises, employing altogether 75 000 persons (including 38 000 women) only 
in five cases were infringements identified. It should be noted that according to PIP, this 
is the result of good knowledge of LC provisions in this respect, both amongst employers 
and employees. In general conclusion, the study indicated that practice shows that one 
can often achieve more through direct contact between the Labour Inspectorate and the 
employer,  than  by  going  to  court.435  This  information  was  confirmed  by  statistical  data 
received from the Ministry of Justice, regarding the number of cases related to parenthood 
rights  of  employees  presented  to  the  courts.  This  data  shows,  that  in  2017,  altogether 
there were 65 cases involving dissolution of an employment agreement during pregnancy, 
maternity, or paternal leave (out of which 57 were lodged by women and 8 by men, which 
constituted respectively 1.8 % and 0.2 % of all cases regarding dissolution of employment 
agreements). Such claims are very rarely successful. From the above caseload, only 21 % 
of the cases lodged by women (that is, 12) and 25 % of the cases lodged by men (that is, 
2)  have  not  been  rejected  or  refused.  It  should  be  noted,  that  in  10  cases  (83  %)  the 
proceeding ended in a court settlement.  

11.1.2 Other issues related to the pursuit of a discrimination claim 

It is worth recalling that in Poland, mainly common courts – and not administrative bodies 
or,  for  example,  independent  equality  bodies  –  were  entrusted  with  combating 
discrimination.  Consequently,  all  disputes  arising  from  employment  relationships 
(including  discrimination  cases)  are  decided  by  civil  courts’  special  labour  and  social 
security departments of the regional and district civil courts. They have jurisdiction over 
all workers' cases (whether they are employees, or civil servants). Also, social insurance 
cases deriving from the appeals against a decision of the Social Insurance Institution (ZUS 
or KRUS) are heard by the above courts. Complaints asserting discrimination, according 
to the Anti-Discrimination Law, are decided by regular civil courts. 

The way in which the statistical data on discrimination-related court cases is gathered and 
presented in Poland should be criticised. Although currently this data is presented in a sex 
disaggregated  form  (which  was  not  the  case  before  2010)  it  still  does  not  indicate  the 
grounds  of  discrimination  (which  is  obvious  only  in  cases  of  sexual  harassment). 
Furthermore, the court’ claims for violations of provisions related to the special protection 
of  employees  during  pregnancy  or  parenthood  are  not  associated  with  statistics  on 
discrimination.436 On the other hand, statistics on mobbing and discrimination are often, 
in analyses, counted as being in the same category (which automatically at least doubles 
the number of discrimination cases).437  

These irregularities are worth emphasising, because on the one hand they may prove the 
lack of sufficient knowledge on the specificity of gender discrimination among the Ministry's 
employees  responsible  for  collecting  data  on  the  justice  system.  On  the  other  hand, 
however,  they  may  indicate  a  lack  of  willingness  to  know  the  true  extent  of  gender 

434  Cf.: Results of investigation on the layoffs of persons returning from maternity, paternity, and parental 

leave and the observance of other employee rights, State Inspectorate of Labour. 2014 
https://www.pip.gov.pl/pl/f/v/100996/sprawozdanie2013.pdf.  

435  The report indicates, inter alia, that in cases of violation of the law, employees rarely go to court. Even in 
cases where the inspectors themselves referred matters to the court, the persons concerned often backed 
out of the proceedings and cases were frequently remitted. Cf.: 
https://www.pip.gov.pl/pl/f/v/100996/sprawozdanie2013.pdf. Hereafter: State Labour Inspectorate 
investigation into the layoffs. 

436  See Ministry of Justice ‘statistics, annual reports on labour law and insurance. Records of cases. 

Section 1.1.2 cf.: Ministry of Justice.  

437  https://www.kariera.pl/artykuly/pracownik-kontra-szef-w-sadzie/, https://serwisy.gazetaprawna.pl/praca-i-

kariera/artykuly/1091941,sad-odszkodowanie-z-tytulu-dyskryminacji-dla-pracownika.html. 

136 

 
 
 
 
 
 
discrimination. The latter assumption is not unreasonable, considering that this method of 
collecting statistical data has not been changed, despite the fact that the above-mentioned 
irregularities have been pointed out for a long time.  

11.1.3 Political and societal debate and pending legislative proposals 

The  social  discussion  on  the  need  to  improve  the  discriminatory  provisions  in  force  in 
Poland,  in  particular  the  Anti-Discrimination  Law  2010,  was  interrupted  after  the 
parliamentary elections in 2015. The current government, despite general criticism of the 
courts and judges, has not addressed the possible shortcomings of jurisprudence in such 
cases,  nor  does  it  touch  the  issue  of  the  low  judicial  effectiveness  of  the  protection  of 
alleged victims of discrimination.  

11.1.4 Gender mainstreaming 

No  gender  mainstreaming  is  incorporated  in  law  and  policy  making.  There  are  no 
guidelines, procedures (such as gender impact assessments) or rules for law and policy 
makers to follow with regards to gender mainstreaming.  

11.2 Victimisation 

The Directives’ provisions on victimisation have been implemented in Article 17 of the Anti-
Discrimination Law and in Article 183e of the LC.  

In light of  Article 17(1) of the  Anti-Discrimination Law, an  employee’s  exercising of the 
right  to  compensation  for  failure  to  apply  the  principle  of  equal  treatment  may  not 
constitute a basis for any unfavourable treatment, and may not place that employee at 
any disadvantage. The above provision also applies to persons who in any form supported 
such  employee  (Article  17(2)).  In  such  cases,  the  provisions  also  apply  regarding: 
damages sought by means of a claim for discrimination (Article 13), the burden of proof, 
as regulated in the Code of Civil Procedure modified by Article 14 of the Anti-Discrimination 
Law and periods of limitation – as in the case of discrimination claims (Article 15). 

According to the Labour Code (Article 183e) the exercise by an employee of the right to 
compensation for failure to apply the principle of equal treatment in employment may not 
constitute a basis for any unfavourable treatment of that employee,  and may not place 
that employee at any disadvantage, and in particular, it may not constitute grounds for 
the  termination  of  an  employment  relationship  by  the  employer,  either  with  or  without 
notice.  This  provision  shall  apply  accordingly  to  any  employee  who  has  provided  any 
support in any form to another employee who exercised his rights in relation to a failure 
to apply the principle of equal treatment in employment.  

Currently, the protection against victimisation in both cases438 complies with the equality 
directives.  However,  this  legislation  raises  doubts  in  judicial  practice,  particularly  as 
regards the possibility of awarding compensation for discrimination under  Article 183d of 
the LC, in the event of victimisation. In this context, the Supreme Court in its reasoning 
to the ruling of 14 December 2017, I PK 342/16, discussed the issue whether the defence 
of  employees’  rights  in  the  court  litigation  initiated  against  an  employer  belongs  to  the 
category of discriminatory grounds listed in the Labour Code. The Supreme Court finally 
opposed this possibility, considering that it was not a feature and personal characteristic 
of  the  claimant,  but  on  the  contrary,  the  victimisation  closely  relates  to  the  work  (the 
claimant sought to preserve her place of work). The Supreme Court pointed out that the 
provision of Article 183a LC distinguishes two groups of prohibited criteria. It requires equal 
treatment  of  employees,  first  of  all,  without  regard  to  their  personal  characteristics  or 

438  In 2008, the LC was subjected to important amendments which brought it in compliance with EU Directives 

(Law of 21 November 2008 (JoL 2008 No. 223 Item 1460) in force since 18 January 2009). 

137 

 
 
 
 
 
 
 
 
 
 
 
properties (gender, age, etc.), and these characteristics are listed in this provision only as 
an example, as evidenced by the use of the words ‘in particular’. Secondly, it also requires 
equal treatment irrespective of whether the worker is employed for a fixed or indefinite 
period or on a full-time or part-time basis. The separation of the two discrimination criteria 
makes it possible to assume that the open list of grounds for discrimination refers only to 
the personal characteristics.  

Defending workers’ rights and therefore being in litigation with the employer does not fall 
within the categories of discriminatory conduct set out in the Labour Code. Therefore, the 
claimant is not entitled to compensation for discrimination referred to in Article 183d of the 
Labour Code.  

This ruling raises concerns because it proved that the Supreme Court completely ignores 
the  content  of  Article  183e  of  the  Labour  Code,  which  correctly  implemented  the 
victimisation  provisions  of  EU  equality  directives.  It  also  seems  that  this  line  of 
interpretation  cannot  be  defended  anymore,  after  the  introduction  of  legislative 
amendments into Article 183a of the LC (by the Law of 16 May 2019), according to which 
the open list of grounds for discrimination refers not only to the personal characteristics, 
but also other characteristics (see more: Section 2.2). 

11.3 Access to courts 

11.3.1 Difficulties and barriers related to access to courts 

The fact that people who feel discriminated against rarely decide to pursue their claims in 
courts, results from many factors of a different nature. One of them is the lack  of easy 
access  to  courts,  which  is  reflected  in  the  existence  of  economic  barriers.  As  already 
mentioned,  all  disputes  arising  from  employment  relationships  are  decided  by  special 
labour and social security departments of the courts. Complaints asserting discrimination, 
according to the Anti-Discrimination Law, are decided by regular civil courts. The access 
to labour courts used to be simple. However, since 2006, this access is no longer free of 
charge if the amount of the claim is higher than PLN 50 000 (EUR 11 027). In such cases, 
similar  to  all  regular  civil  cases,  the  court  fee  amounts  to  5 %  of  the  claim  value,  not 
exceeding PLN 100 000 (EUR 22 053).439  

The risk of having to reimburse the proceedings costs of the winning party,440 which occurs 
in one out of five discrimination cases, may also have a deterrent effect on victims.441 This 
has resulted in a decline in the number of individual claims, which may be a sign that the 
reduction in the level of judicial protection, e.g. against discrimination, is unjustified. The 
previously  discussed  ruling  in  case  no.  VII  Pa  326/15  –  regarding  the  reinstatement  to 
work of a religion teacher, dismissed by the school because her missio canonica had not 
been extended due to her out-of-wedlock pregnancy – disclosed a dangerous tendency to 

439  The possibilities of claiming high amounts as compensation for discrimination are significantly limited by the 

provision of Article 35(1) of the Law of 28 July on court fees in civil cases (consolidated text JoL 2018 Item 
300), which introduces a relative fee in employee cases if the value of the object of dispute or object of 
complaint exceeds PLN 50 000 (EUR 11 628). Regarding cases when the amount indicated is exceeded, the 
introduction of a fixed fee in mobbing and discriminatory cases should be postulated. It should also be 
postulated that the catalogue of cases that may be considered in class action proceedings would be 
extended accordingly.  

440   Law of 28 July 2005 on court fees in civil cases. In other cases, the fee is low and amounts to PLN 30 in the 
case of complaints, appeals and cassation claims. There is the possibility to release an employee from court 
fees and costs of proceedings, however, only in exceptional circumstances. 

441  See report ‘Skarga na naruszenie prawa strony do rozpoznania sprawy w rozsądnym terminie na tle 

ewidencji spraw w sadach powszechnych w latach 2012-2016’ (Action for infringement of a party's right to 
have his case heard within a reasonable time in the light of the register of cases in the common courts in 
the years 2012-2016'.) prepared by Department of Statistics of the Ministry of Justice, Warszawa 2017, 
available through website: https://isws.ms.gov.pl/pl/baza-statystyczna/publikacje/download,2779,0.html, 
Cf. also: http://serwisy.gazetaprawna.pl/praca-i-kariera/artykuly/1091941,sad-odszkodowanie-z-tytulu-
dyskryminacji-dla-pracownika.html. 

138 

 
 
 
 
 
 
 
 
burden the losing claimant with the obligation to reimburse the defendant with the costs 
of procedural representation, blaming her for the rise of the procedural costs.442 It is hard 
to say if this ruling constitutes a single incident, or if it is a sign of a broader tendency. 
Nevertheless, the court taking this position could effectively discourage persons claiming 
discrimination from bringing their cases to court.  

The  common  knowledge  of  the  very  long  duration  of  proceedings  in  employment  cases 
and about lack of  effective legal remedies against excessive length of  such proceedings 
may also discourage victims in bringing discrimination cases before the court.443 According 
to  data  of  the  Ministry  of  Justice  for  the  first  half  of  2017,  the  average  duration  of 
proceedings in all discrimination cases amounted to approximately 19 months (13 months 
when the claimant was a woman and 16 months in the case of men).444 During the course 
of the pandemic, the length of legal proceedings has increased even further.445 Another 
obstacle  for  persons  pursuing  discrimination-related  claims  are  the  relatively  small 
chances of obtaining competent legal aid (see more below). A further barrier to exercising 
the right to a court in discriminatory cases is the lack of clarity as to the admissibility of 
class  actions  in  such  cases.  Such  possibility  is  provided  for  in  the  Law  of  17  December 
2009 on claims in group proceedings (JoL of 2010, No. 7, Item 44), which explicitly states 
that its scope of application does not encompass claims against employers. This limitation 
seems also to apply to claims for violation of the equal treatment rule. According to some 
opinions,446 employees may pursue their claims together only according to  Article 72 of 
the  Code  of  Civil  Procedure.  In  such  a  situation,  however,  each  of  them  would  have  to 
appear in court (in person or represented by counsel). The above opinion is not entirely 
correct, however, because the scope of application of the law on group proceedings, inter 
alia,  includes  claims  resulting  from  delicts,  with  the  exception  of  protection  of  personal 
goods.  An  employer  violating  the  employee’s  right  to  equal  treatment,  which  can  be 
qualified as a misdemeanour (contravention) or a crime, thus also commits an offence, in 
the understanding of the law on group proceedings. This provision, however, seems not 
to apply, e.g. to health injuries, which occurred as a result of sex-based harassment or 
sexual harassment, hence those actions constitute violations (infringements) of personal 
interests  (rights).  Group  proceedings  cannot  be  used  by  an  employee  who  lodges  an 
individual claim after the group proceedings has been initiated. However, despite the fact 
that class actions in employment disputes are possible, in practice they are very hard to 
win. This is because in these cases the burden of proof lies with the employee (according 
to the general rule of Article 6 CC). It is, however, worth noting that in the judgment of 
23 November 2001 (I PKN 678/00), the Supreme Court stated that, e.g. in the case of 

442  The claimant, being pregnant and unemployed, found herself in a difficult material situation and for such 

occasions, Article 102 of the Code of Civil Procedure provides for the possibility to relieve the claimant from 
those costs. In this case the costs were substantial, amounting to EUR 270 (PLN 1 161) (in the first 
instance and EUR 240 (PLN 1 032) in the appeal. The court’s justification of this refusal was most bizarre: 
the court blamed her for using the wrong litigation tactic; she should first have lodged a claim for 
reinstatement to work, for which the costs of representation are regulated at a fixed low level, and, 
depending on the result of these proceedings, subsequently decide if lodging a claim for compensation was 
reasonable. In that case, the costs of representation to be reimbursed would have been significantly lower. 
The court also took into consideration that the claimant was represented by a professional lawyer provided 
by an NGO, who should have informed her of this fact. 

443  Since 2005, the Law of 17 June 2004 applies – on claims for violation of the right of a party to recognise 
the case in in court proceedings, without undue delay (Ustawa o skardze na naruszenie prawa strony do 
rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki), consolidated text JoL 2018Item 
75. Nevertheless, there are very few such cases at all (for instance, in 2017, the total number was 18 000) 
and damages based on this law are awarded very rarely (about 80 % of claims are refused for formal 
reasons or rejected), http://serwisy.gazetaprawna.pl/praca-i-kariera/artykuly/1110278,czas-trwania-
spraw-sadowych-pracownikow.html, http://www.rp.pl/W-sadzie-i-urzedzie/303229980-Coraz-wiecej-skarg-
na-zbyt-dlugie-procesy-sadowe.html. 

444  For comparison: other labour law cases are handled, on average, in approximately 9.4 months. 
445  The fact of additional difficulties faced by the justice system during the pandemic is indicated in its research 

on the lengthiness of proceedings by the Helsinki Foundation for Human Rights, 
https://www.prawo.pl/prawnicy-sady/przewleklosc-postepowania-jak-wyglada-sytuacja-w-sadach-
raport,506645.html.  

446  See: Gładoch, M., Commentary on Article 242 LC (in:) Kodeks Pracy. Komentarz (Labour Code. 

Commentary) ed. Sobczyk, A., C.H. Beck, Warszawa 2015, p. 937. 

139 

 
 
 
disputes on working time, the burden of proof also lies with the employer, who is obliged 
to  keep  a  record  of  working  time.  Additionally,  in  the  judgment  of  5  May  1999 
(I PKN 665/98), the Supreme Court decided that missing documentation, resulting from 
the  fact  that  the  employer  failed  to  collect  it,  results  in  a  shift  of  the  burden  of  proof 
towards the employer.447 The employer has the obligation to prove that the employee did 
not actually work during the working times claimed by him.448  

11.3.2 Availability of legal aid 

There  are  no  particular  provisions  regarding  legal  aid  for  alleged  victims  of  gender 
discrimination. The general rules for providing unpaid legal assistance are defined in the 
Law of 4 August 2015 on unpaid legal assistance, citizens’ counselling and education,449 
which entered into force on 1 January 2016, regarding the majority of its provisions. This 
law,  applying  to  pre-litigation,  inter  alia,  specifies  the  categories  of  persons  entitled  to 
such assistance, that is, those who cannot afford paid professional aid (Article 4)450 and 
also mentions what such assistance might include (Article 2).451 In addition to the above, 
a  victim  of  discrimination  who  decides  to  initiate  legal  proceedings  may  request  a 
representative to be assigned by the court, according to the general provisions of the Code 
of  Civil  Procedure,  modified  by  particular  provisions  regarding  claims  resulting  from 
employment  relationships,452  as  well  as  those  specified  in  Article  87  CPC.  A  qualifying 
condition for a person applying for a court-appointed representative is the submitting of a 
declaration of inability to cover the costs of a lawyer or legal counsel, without endangering 
the ability to provide for himself  or his  family.  The  form for this declaration is available 
free of charge in courts and on the website of the Ministry of Justice. The court will grant 
the request if it finds that participation of a lawyer or legal counsel in the particular case 
is necessary.453 This should happen when the case is complicated and past behaviour of 
the party during proceedings indicates that s/he might be incapable.454 This condition is 
applied by courts very restrictively. According to some case law, even discovering that the 
claimant  has  a  mental  disease  of  mild  intensity  or  a  psychological  disorder  does  not 
constitute  a  precondition  obliging  the  court  to  grant  the  motion  for  a  court-appointed 
representative.455 The court’s decision on denying the above request might be subject to 
a formal complaint.  

Another problem is the generally low quality of legal aid available to claimants. This results 
from insufficient knowledge among lawyers regarding discrimination matters. At the same 
time, some courts show disregard towards the competent specialised lawyers provided by 
NGOs  specialised  in  discrimination,  participating  in  proceedings  (see  example  given 
above).  

447  http://www.rp.pl/artykul/335227.html W sądzie to szef udowadnia, że podwładny nie miał zbyt wielu zajęć 

(In court, the boss proves that the subordinate did not have too many jobs). 

448  Ibidem. 
449  JoL 2015 Item 1255.  
450  Such persons also include persons entitled to social aid, younger than 26 or older than 65, victims of 

natural disaster, veterans, members of large families. 

451  It consists of granting legal information, indicating how to solve a legal problem and prepare pleadings, 

including application for the allocation of the legal representative.  

452  For example, pursuant to Article 465 of the Code of Civil Procedure, the plenipotentiary can be not only a 

lawyer or a legal adviser but also a representative of trade unions, a labour inspector or an employee of the 
workplace, in which the claimant is or was employed.  

453  See www.ms.gov.pl. 
454  In the sense that s/he is unable to properly prepare court documents, submit motions for evidence and 

observe deadlines, or is not active during the proceedings. 

455  SC ruling of 16 December 1997, II UKN 404/97, OSNP 1998/21/641. 

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11.4 Horizontal effect of the applicable law 

11.4.1 Horizontal effect of relevant gender equality law 

There is no problem in Poland with the horizontal effect of EU gender equality law. This is 
related to the fact that as part of implementation of respective directives into Polish law, 
it was directly foreseen that their provisions refer both to relations between the individual 
and public entities (when they have a vertical effect), as well as relations between private 
entities  (when  they  have  a  horizontal  effect).  This  principle  in  the  Labour  Code  results 
from  Article  3,  which  states  that  the  notion  of  an  ‘employer’  encompasses  both  an 
organisational unit (even if it does not have a legal personality), and a natural person, if 
they employ employees. In the Anti-Discrimination Act, the horizontal effect results from 
Article  2,  which  states  that  the  Act  applies  to  natural  persons  and  to  legal  persons  or 
organisational units that are not legal persons, to whom the law grants legal capacity.  

11.4.2 Impact of horizontal direct effects of the charter after Bauer  

The author of this report thinks that under Polish conditions, the Bauer ruling may have 
double effects, both positive and negative.  

The positive effects include the fact that the Court has reaffirmed the constitutional status 
of the fundamental social rights enshrined in the Charter and their normative character, 
with the consequence that they can be pursued as such in individual disputes with both 
public and private entities. Furthermore, it follows from that judgment that the Member 
State must offer the individual a remedy in the event of infringement of those rights and 
the failure to comply with this obligation may give rise to State liability for damages.456 

This is important in Poland for two following reasons. Firstly, it may bring positive changes 
in the future as to the possibility of vindicating social rights in Poland by relying directly 
on the provisions of EU law (the Constitution of the Republic of Poland excludes in Article 
81 the possibility to  vindicate social  rights, by  giving them a different  legal status  from 
other citizens’ and political rights).  

Secondly, the Bauer ruling may also revitalise the discussion, whether or not EU law has 
priority,  not  only  over  ordinary  laws  (which  is  directly  admitted  in  Article  91(2)  of  the 
Constitution),  but  also  over  the  Polish  Constitution  (which  was  excluded  by  the 
Constitutional Tribunal, among others, in the ruling of 4 May 2005 (K 18/04)).457 

Thirdly, it may also reinitiate the debate on the binding force of Protocol 30 (previously 
No. 7)  to  the  Lisbon  Treaty  (the  so-called  British  Protocol)  to  which  Poland  has  also 
acceded. The dispute is whether the Protocol is a reservation within the meaning of the 
Vienna Convention on international treaties or merely an interpretative declaration.458 The 
source of these doubts is, among others, the inconsistency characterising the activities of 
the Republic of Poland at the time of ratification of the Lisbon Treaty. On the one hand, 
the  Republic  of  Poland  excluded  in  the  protocol  the  direct  effectiveness  of  social  rights 
contained in the Charter. On the other hand, the Republic of Poland adopted Declaration 
No 62, providing for Polish support for labour  and social rights.  The effect of the Bauer 

456  It is also a merit of the CJEU to offer in the Bauer ruling, an illustration of the substantive unfairness in 
which the lack of horizontal direct effect of directives could have resulted by bringing together a case 
against a public employer and a case against a private employer in the same factual scenario. 

457  In this judgment, the Constitutional Tribunal stated, inter alia: ‘The priority provided for in Article 91(1) and 

(3) of the Constitution for the application of a ratified international agreement, as well as the law 
established by an international organisation on the basis of such an agreement over Polish law, does not in 
any way imply their primacy over the Constitution’.  

458  It is worth recalling that the purpose of this Protocol was undoubtedly to limit the effects of the Charter in 
the legal order of the Republic of Poland, inter alia, by excluding its direct effectiveness, i.e. the possibility 
of directly using the provisions of the Charter as a source of rights in proceedings pending before Polish 
courts in situations where EU law is applied. 

141 

 
 
 
 
 
 
 
 
 
 
ruling in this respect is difficult to predict. However, there is a danger that this ruling will 
be used by the current anti-European government to stiffen the position on the binding 
force of Protocol No. 30 to the Lisbon Treaty.  

The CJEU decision on the merits (regarding the recognition of the heirs’ right to inherit the 
remuneration for leave not taken by the employee due to his or her death),459 which was 
immediately  publicly  announced  in  Poland  by  the  Social  Insurance  Institution  (ZUS),460 
should also be positively assessed. Incidentally, it is worth noting the discriminatory aspect 
of  this  case,  in  the  sense  that  if  the  CJEU  did  not  recognise  such  a  right,  it  could  be 
considered  as  indirect  gender  discrimination,  given  that  in  most  cases,  the  heirs  of 
deceased employees would be wives (since statistically, women live longer than men).461 

11.5 Burden of proof  

A shift of the burden of proof in sex discrimination cases is provided in  Article 14 of the 
Anti-Discrimination Law and in Article 183b of the LC. In both of the above acts, the wording 
of regulations related to this is slightly different.  

In the Anti-Discrimination Law, Article 14(1) stipulates that proceedings involving charges 
of  violation  of  the  equal  treatment  rule  are  covered  by  provisions  of  the  Code  of  Civil 
Procedure. At the same time, however, it changes the general rule of burden of proof in 
civil law cases, regulated in Article 6 of the Civil Code.462 According to this provision, an 
individual who accuses another person of a violation of the equal treatment rule shall make 
probable (uprawdopodobnia)463 that this violation took place (Article 14(2)). In such cases, 
the person accused shall prove that in spite  of this probability  s/he did not  commit the 
violation (Article 14(3)). The intention of this provision was to shift the burden of proof to 
the  defendant.  However,  the  requirements  for  the  person  claiming  to  have  been 
discriminated against go further than just a presentation of the basic facts. This provision 
might also be understood as requiring a claimant, in addition, to show probable existence 
of discrimination, by indicating the grounds of it (although in Article 14, such requirement 

459  In the judgment of 6 November 2018 (in Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v Maria 

Elisabeth Bauer and Volker Wíllmeroth v Martin Broßonn), the Court of Justice of the EU confirmed that, in 
accordance with Union law, the death of a worker does not give rise to the expiry of his right to paid annual 
leave. The CJEU clarified that the heirs of a deceased worker may claim an allowance in lieu of paid annual 
leave not taken by him. Where national law precludes such a possibility and thus proves incompatible with 
European Union law, the heirs may invoke European Union law directly against both the public employer 
and the private employer. 

460  https://ksiegowosc.infor.pl/zus-kadry/urlopy/2795658,Dziedziczenie-ekwiwalentu-za-niewykorzystany-

urlop.html. 

461  Main Polish Statistical Office (GUS) reports that in 2018 the average life expectancy of men living in cities 
was 74.2 years, i.e. one year more than that of men in rural areas, while the average life expectancy of 
women living in both cities and rural areas was 81.6 years. In Poland, on average, women live 82.0 years, 
while men live 73.9 years, https://stat.gov.pl/kobiety-i-mezczyzni-w-europie/bloc-1a.html?lang=plIn. 
462  According to which, the burden of proof of a fact shall lie with the person who asserts legal consequences 

arising from this fact. 

463  Considerations concerning the procedural importance of the legislator’s distinguishing the notion of 

'probability’ (plausibility) from the notion of ‘proof’ were given by the Supreme Court in the judgment of 7 
November 2018 (II PK 229/17). The Supreme Court emphasised that although the institution of probability 
does not have its own legal definition, in the literature it is explained that probability is a surrogate of 
evidence in the strict sense. It is an exception to the rule that facts significant for the case must be proved. 
This exception works in favour of the party invoking certain facts, whereas for the opponent of the trial, 
plausibility is highly unfavourable. The other party (employer) must put much more effort into overturning 
the claim made by the employee, because it is more difficult to cross out its probability than certainty. In 
the latter case, it would be sufficient just to prove that there is any doubt of actual or even only potential 
character. In the case of probability, however, the employer must show that the negation of the employee's 
claim is better justified, which causes a lot more problems. The institution of probabilities is also connected 
with the facilitations (loosening) in evidential rules by possibility of using other sources of information than 
the means of evidence specified in the Code of Civil Procedure. The means of substantiation may be 
statements of third parties made in writing, verbal messages, e.g. hearing informal witness statements 
which are not sworn testimonies. In the judgment of 13 July 1966, II CZ 74/66, the Supreme Court 
stipulated, however, that such facilitation measures may not result in uncritical acceptance of the findings 
made in the aforementioned procedure, as the procedures for making prima facie evidence, although 
devoid of formalism, are covered by the objective truth principle. 

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is not explicitly mentioned). In the literature, the argument has been justly raised that it 
is  too  much  to  expect  the  claimant  to  know  the  motivation  of  the  defendant’s  alleged 
discriminatory  behaviour.  It  therefore  seems  justified  that  the  claimant  should  only  be 
required  to  present  basic  facts  of  unequal  treatment,  creating  a  legal  presumption  of 
discrimination, whereas it should be the obligation of the defendant to provide evidence 
to the contrary.464 

The provision of Article 183b LC defines what kind of different treatment of an employee,465 
unless justified by objective reasons demonstrated by the employer, is to be considered 
as failure to apply the principle of equal treatment in employment, inter alia, with regard 
to  sex.  In  the  beginning,  the  different  courts  interpreted  this  provision  differently,  in 
particular  with  respect  to  mutual  relations  between  violation  of  the  principle  of  equal 
treatment and discrimination, and as to the understanding of the employee’s obligations 
deriving from the shift of the burden of proof. 

Finally,  however,  the  Supreme  Court  in  the  ruling  of  14  December  2017  (I  PK  342/16) 
suggested the following, uniform way of interpretation:466  

‘Discrimination  is  a  qualified  form  of  unequal  treatment  of  employees  and  means, 
unjustified by objective reasons, worse treatment of an employee on the grounds of 
personal features or characteristics not related to his or her job (such as sex, age, 
etc.) or specified circumstances related to the job (part-time job, contract of defined 
period of time), listed in Article 113 and Article 183a(1) of the Labour Code. Despite 
the close link between the principles expressed in  Article 112 and Article 113 LC, if 
the  inequality  is  not  dictated  by  the  criteria  prohibited  by  Article  113  and 
Article 183a(1) of the Labour Code, then it can only be said that the principle of equal 
rights (equal treatment) of employees, provided for in Article 112 of the LC, has been 
infringed. This has significant consequences, because the provisions of the Labour 
Code relating to discrimination do not apply in cases of ‘simple’ unequal treatment.467 
Therefore,  if  an  employee  accuses  their  employer  of  violating  the  provisions 
concerning the prohibition of discrimination in employment, he/she should indicate 
not only the facts to unequal treatment but, in addition, specify the alleged ground 
(or grounds) of such differentiation. Only in the case where the claim meets both of 
these  requirements,  Article 183b(1)  of  the  Labour  Code  (introduced  while 
implementing  EU  law),468  which  shifts  a  burden  of  proof  to  the  employer,  may  be 
applied.469 Only the statement of the employer’s discriminatory activity justifies the 
employee’s claim for compensation provided for in Article 183d of the Labour Code. 
In this case, the employer’s liability for damages is limited to a breach of the principle 
of non-discrimination (cf. the aforementioned judgment of the Supreme Court of 28 
May 2008, I PK 259/07, as well as judgments of 7 December 2011, II PK 77/11; of 

464  See Czarnecki, P., Rozkład ciężaru dowodu w sprawach na tle dyskryminacji (The burden of proof in 

discrimination cases), Praca i Zabezpieczenie Społeczne 2006, No. 3, p. 11. 

465  The consequence of which is, in particular, the refusal to conclude or dissolve the employment relation or 

unfavourable transfer to another position.  

466  Emphasising that this view has already been expressed in the SC case law: See the ruling of Supreme 

Court of: 12 December 2001, I PKN 182/01; of 23 January 2002, I PKN 816/00; 17 February 2004, I PK 
386/03; 5 May 2005, IIIPK14/05; 10 October 2006, I PK 92/06; 9 January 2007, II PK 180/06; 19 January 
1998, I PKN 484/97; 28 May 2008, IPK 259/07; 8 (18) August 2009, I PK 28/09; 3 December 2009, 
IIPK148/09; 12 March 2010, II PK 279/09; 21 January 2011, II PK 169/10; 7 April 2011, I PK 232/10; 3 
September 2011, I PK 72/10; 2 October 2012, II PK 82/12. 

467  See e.g. judgments of the Supreme Court of 18 August 2009, I PK 28/09, and 18 April 2012, II PK 196/11, 

and the rulings referred to in them. 

468  Here the Supreme Court cited the provision related to the shift of burden of proof contained in all equality 

directives, as well as judgment of the Court of Justice of EU of 31 March 1981, C-96/80 in the case of J.P.J. 
v K. K. and of 13 May 1986, C-170/84 in the case Susanne B. v Bank der Õ.GA.  

469  For instance, in the Supreme Court judgment of 24 May 2005, II PK 33/05, unpublished, and of 9 June 

2006, III PK 30/06 and of 2 February 2007, I PK 242/06, the Supreme Court ruled that an employee should 
present to the court facts from which a presumption of direct or indirect discrimination may be derived, and 
then the burden of proof is transferred to the employer, that in differentiating the situation of employees he 
was guided by objective premises. 

143 

 
 
 
 
 
18 April 2012, II PK 196/11; of 10 May 2012, II PK 227/11 and of 14 January 2013, 
I PK 164/12)’.  

It follows from those judgments that, in the SC's view, the court is not obliged to establish 
the existence of discrimination ex officio, even when it is evident, if the claimant does not 
raise such allegation, indicating specific grounds for discrimination. This interpretation is 
unfavourable  to  the  claimant,  who  may  well  be  unaware  of  the  aforementioned  legal 
subtleties  and  in  addition,  it  seems  to  be  contrary  to  the  spirit  of  European  anti-
discrimination law.470  

The  rules  on  the  shift  of  burden  of  proof  in  Article  14  of  the  Anti-Discrimination  Law  in 
general  are  compatible  with  EU  law.  However,  the  lack  of  reference  to  discrimination 
should be considered as a flaw in this provision (which speaks only about ‘breach of the 
principle of equal treatment’).  

The  provision  of  Article  183b 
in  fine  LC  does  not  comply  with  Article  19  of 
Directive 2006/54/EC, because first of all, it provides such a shift of proof explicitly only 
in cases when an allegation of discrimination refers to unfair work  conditions (including 
remuneration)  and  to  access  to  vocational  training.  Sexual  harassment,  for  instance, 
remains  out  of  its  scope  of  application,  which  is  also  confirmed  by  the  fact  that  this 
provision  requires  the  employer  to  prove  that  the  differentiation  of  the  employee's 
employment  situation  was  based  on  objective  reasons.  When,  however,  the  factual 
findings confirm the illegality of sexual behaviour, it is difficult to talk about any ‘objective 
reasons’ that would justify them. Moreover, unlike EU law, this provision does not specify 
the obligations of the employee alleging discrimination, which certainly does not facilitate 
the  practical  distribution  of  the  burden  of  proof.  In  addition,  there  is  no  legal  provision 
referring to the denial of access to information, to the person claiming discrimination. In 
particular, there is no legal provision or case law that would indicate that refusal to grant 
access to information to the person claiming discrimination, has been considered as one 
of the factors in the context of establishing facts from which it may be presumed that there 
has been direct or indirect discrimination. The incorrect implementation in the Labour Code 
of EU provisions on the shift of the burden of proof, which gives rise to many interpretative 
difficulties, is undoubtedly one of the reasons for the difficulties encountered by victims of 
discrimination in asserting their rights.  

11.6 Remedies and sanctions  

11.6.1 Types of remedies and sanctions 

Both  the  Anti-Discrimination  Law  (in  Article  13)  and  Labour  Code  (in  Article  183d  LC) 
provide  for  the  possibility  to  receive  compensation  for  violation  of  the  equal  treatment 
rule.  Both  above-mentioned  acts  use  the  Polish  word  in  this  context,  ‘odszkodowanie’, 
which literally is understood as compensation of damages.  

The  possibility  of  compensation  in  the  case  of  discrimination  occurring  outside  the 
employment  relationship  is  provided  in  the  Anti-Discrimination  Law  (Article  13(1)). 
According to this provision, everyone affected by violation of the equal treatment rule has 
the right to compensation. This provision does not indicate in what minimum amount this 
compensation should be, nor does it stipulate that it must be effective, proportionate and 
dissuasive. At the same time, this provision states that in such cases the provisions of the 
Civil  Code  shall  apply.  It  should  be  noted  that  the  Civil  Code  distinguishes  between 
compensation  for  material  loss  (odszkodowanie)  and  satisfaction  for  immaterial  injury 
(zadośćuczynienie). Hence, in the doctrine it is pointed out that in the current state of law, 
there are serious doubts as to whether granting satisfaction for moral injury, according to 

470  Similar: Łętowska, E., Rzeżbienie prawa (Sculpturing law), Wolters Kluwer, Warszawa 2012, p. 255.  

144 

 
 
 
 
 
 
 
 
 
Article  13  of  the  Anti-Discrimination  Law,  is  allowed  in  the  case  of  discrimination.471  In 
some opinions it is stressed that there are no arguments against similar interpretation of 
the  sanction  for  discrimination  in  the  Labour  Code  and  in  the  Anti-Discrimination  Law, 
especially since the latter may also apply to workers who are not employed based on an 
employment agreement (e.g. on service contracts or contract work). Nevertheless, since 
the Anti-Discrimination Law explicitly refers to the Civil Code, which clearly distinguishes 
these two types of harm (unlike the LC), one has to assume that the provision of Article 13 
of the Anti-Discrimination Law does not properly implement EU gender equality law.472  

Also, Article 183d LC – which, as mentioned above, also uses the term ‘damages’ – initially 
raised  similar  concerns.  This  provision,  unlike  the  Anti-Discrimination  Law,  sets  the 
minimum amount of such compensation, which is not lower than the minimum wage in a 
given  calendar  year.  Therefore,  it  is  not  excluded  that  higher  compensation  may  be 
claimed. The phrase ‘compensation of not less than’ without setting an upper limit assumes 
that the amount of compensation will vary depending on the gravity of the breach of the 
principle of equal treatment in a specific case. Although  Article 183d LC does not specify 
the  nature  of  damages,  it  would  appear  that  the  view  that  such  damages  have  the 
characteristics of a penalty for a mere breach of the principle of equal treatment can be 
defended. In practical terms, this means that the right to compensation under Article 183d 
of the LC is not conditional on the employee suffering any damage.473  

Currently, there seems to be a prevailing opinion that the term ‘compensation’, as used in 
the  LC,  should  be  interpreted  as  also  encompassing  satisfaction  for  moral  injuries.  For 
instance,  the  Supreme  Court  in  justification  of  the  judgment  of  7  January  2008 
(III PK 43/08), which also contains general deliberations on the legal nature and functions 
of the compensation provided for in Article 183d of the LC, stated that this compensation 
has  two  functions.  Firstly,  the  reparations  for  material  damage  and  secondly, 
compensation  for  non-material  suffering  of  the  employee.  According  to  the  Supreme 
Court,  the  existence  of  this  second  function  is  proved  (evidenced)  by  the  fact  that  the 
above-mentioned  provision  of  the  LC,  while  stating  that  an  employee  in  a  case  of 
discrimination against her/him is entitled to the compensation at least of the amount of 
the  minimum  wage,  does  not  make  it  dependent  on  any  damage.474  Moreover,  the 
Supreme  Court  also  draws  attention  to  this  aspect  of  the  compensation,  which  gives  a 
sense  of  satisfaction  to  the  employee  that  the  employer  is  punished  (sanctioned)  for 
discriminatory behaviour.475  

There are diverging opinions on the question as to whether or not a claim for compensation 
based on the Labour Code excludes the possibility of referring also to the provisions of the 
Civil Code.476 There are two possible views. The first refers to the fact that compensation 
for discrimination has been included in the Labour Code, which would imply that the matter 
of compensation of damages in such case has been completely regulated by provisions of 
labour law (unitary approach). The second view, however, considers the relevant provision 

471  Cf.: Letter of the Commissioner for Human Rights to Governmental Plenipotentiary for Equal Treatment of 

28 May 2012 indicating the need for change of the Anti-Discrimination Law in this respect, p. 10 
https://www.rpo.gov.pl/sprawy-generalne/pdf/2011/10/687085/1647153.pdf. 

472  It is, among others, the opinion of the Commissioner for Human Rights who, while requesting the revision 
of the Anti-Discrimination Law raised this issue, among others. Cf.: Appeal to Government Plenipotentiary 
for Equal Treatment of 28 May 2012 https://www.rpo.gov.pl/sprawy-
generalne/pdf/2011/10/687085/1647153.pdf. 

473  In light of the case law, that provision does not, however, constitute a basis for awarding damages for 

damage which may occur in the future (ruling of the SC of 7 January 2009, III PK 43/08). 

474  Cf. also ruling of the SC of 10 June 2007 (II PK 256/13).  
475  In the same sense, cf.: the judgment of the Supreme Court of 14 February 2013 (III PK 31/12) and Korus, 
P. (in) Kodeks pracy. Komentarz (Labour Code. Commentary) ed. Sobczyk, A., 2nd edition, C.H. Beck, 
Warszawa 2015, p. 81 and Barzycka-Banaszczyk, M., Odpowiedzialność odszkodowawcza pracodawcy 
(Employer's liability for damages), C.H. Beck, Warszawa 2017, p. 71-72. 

476  The question is whether (and possibly when) compensation for a specific, quantifiable, harm resulting from 

violation of the principle of equal treatment in terms of e.g. remuneration should be awarded on the basis 
of 183d LC, or on the basis of general provisions of civil law. 

145 

 
 
 
 
 
of the Labour Code to be a partial regulation, only providing for a punishment (punitive 
damage) for the fact of committing discrimination, thus requiring supplementary reference 
to  the  Civil  Code  in  matters  regarding  compensation  of  damages  caused  by  pay 
discrimination (dual approach). 

To  some  extent  these  concerns  have  been  explained  in  different  ways  by  the  Supreme 
Court’s case law. For example, in the judgment of 22 February 2007 (I PK 242/06), the 
Court  took  a  dualistic  approach  stating  that,  when  the  allegation  concerns  wage 
discrimination, in addition to punitive compensation for discrimination agreed on the basis 
of Article 183d LC, the employee may also claim compensation, which ought to equal the 
difference between the wage received and that which should have been received, if the 
principle of equal treatment had not been violated, for the period during which the violation 
of the right occurred.477 

However, in the judgment of 22 February 2007 (I PK 242/06), the Supreme Court took a 
monistic view by stating that a worker may claim compensation under Article 183d LC equal 
to  the  difference  between  the  remuneration  which  he  should  have  received  without 
breaching the principle of equal pay and that actually received.478 

There is also an example of seeking a compromise solution, such as the decision of the 
Supreme Court of 7 January 2009 (III PK 43/08), where it stated that the compensation 
resulting from Article 183d of the LC includes compensation of personal damage to  non-
property assets. If, however, the compensation for discrimination, established according 
to general civil law provisions (Article 361(2) of the Civil Code) are ‘effective, proportionate 
and dissuasive’ with respect to European labour law standards, then there is no entitlement 
to additional satisfaction according to Article 183d LC.479 

In  jurisprudence  the  problem  also  arises  of  the  way  in  which  the  amount  of  the 
compensation provided for in Article 183d LC should be established. The Regional Court for 
Warsaw Praga-Południe, in a ruling of 29 July 2014 (VI P 167/13), besides damages for 
unlawful  dissolution  of  employment  contract,  also  awarded  the  claimant  damages  for 
violation  of  the  equal  treatment  rule,  in  the  amount  of  PLN  1 680  (EUR  370),  which 
equalled the minimal remuneration at the time of issuing the ruling, despite the fact that 
the claimant demanded PLN 12 000 (EUR 2 646). The Court justified the reduction of the 
compensation by declaring that its function is, in the first place, compensation of personal 
loss,  and  that  it  carries  out  the  role  similar  to  compensation  of  immaterial  loss.  At  the 
same time, however, the Court noted that the provision of Article 183d LC does not provide 
for rules for determining damages, besides defining its minimum amount. In the Court’s 
opinion, it was the role of the claimant to make evident why she demanded damages in 
the particular amount, as well as to prove the existence of loss. Since the claimant did not 

477  Also in commentaries to the Labour Code it is stressed that by determining the damage according to Article 
183d, it is important to examine whether it is the only damage or the subsequent compensation imposed on 
the employer in a case of discrimination. Proving that by determining the amount of remuneration for equal 
work or work of equal value performed by women and men, the employer has discriminated against 
women, justifies – in addition to the compensation payable under Article 183d of the Labour Code – the 
demand to award a due remuneration, which should be determined on the basis of the quantity and quality 
of work performed, and not on the basis of the employee's sex. (Świątkowski, A.M., Kodeks pracy. 
Komentarz (Labour Code. Commentary), 4th edition, C.H. Beck, Warszawa 2012, p. 104.  

478  The SC in some rulings also supported the monistic concept. For example, in the judgment of 15 March 
2016, case ref. no. II PK 17/15, where it is stated, inter alia, that ‘compensation under labour law for 
breach of the principle of equal treatment in employment exhausts, as a rule, all claims for wage 
discrimination of the injured employee (Article 183c in conjunction with Article 183d LC). In its justification, 
the Court stated that wage discrimination is an opposite (denial) of the employee's right to equal pay for 
equal work or for work of equal value (Article 183c LC), therefore it is subject to a compensation sanction of 
the Labour Law (Article 183d LC), without the need and admissibility of seeking civil law grounds for liability 
for breach of the right to equal pay for equal work or for work of equal value. In other words, and 
specifically speaking, compensation under employment law for breach of the principle of equal treatment in 
employment exhausts, as a rule, the entire claim for wage discrimination of an injured employee. 

479  This view was approved by some of the doctrine representatives (cf. Muszalski, W., Komentarz do kodeksu 

pracy (Commentary to the Labour Code), ed. Muszalski, W., 8th edition, C.H. Beck, Warszawa 2011, p. 54.  

146 

 
 
 
 
 
 
provide such evidence, the Court decided that the awarded damages should be limited to 
the  minimal  amount.  This  reasoning  of  this  ruling  may  be  somewhat  surprising.  The 
expectation of the Court, that the claimant shall, according to general rules of evidence, 
prove the amount of loss suffered as a result of discrimination, evidenced that this court 
was not aware of the European law requirements that sanctions should be proportional to 
the nature and seriousness of the violation of equality rule and dissuasive for the employer 
and it is for the court to decide on this matter.  

It should be added that in the case of discrimination in access to goods and services, the 
general  Civil  Code  (CC)  provisions  regarding  the  protection  of  personal  goods  may  be 
applied. Article 23 CC explicitly protects such goods as health, freedom, honour, freedom 
of conscience, image, confidentiality of correspondence and inviolability of residence and 
scientific and innovative creativity (output). The list of goods protected in this provision 
does not have exclusive character, which means that a person discriminated against, e.g. 
with  regard  to  sex,  may  invoke  this  provision  claiming  that  his/her  dignity  has  been 
violated. According to those provisions, one can claim, among other things: abandonment 
of actions endangering personal goods, payment of monetary damages for moral injuries, 
or  reparation  of  damages  in  cases  when,  as  a  result  of  violation  of  a  personal  good, 
material damage has been caused.  

In addition to these labour law remedies, the administrative monitoring body, the State 
Labour Inspectorate (Państwowa Inspekcja Pracy), may also initiate proceedings against 
a discriminating employer. The scope of action of this institution is defined by the Law of 
13 April 2008.480 This Law also regulates the way Inspectors are allowed to proceed with 
inspections as well as their obligations and competences. Only in matters not defined by 
law shall provisions of the Code of Administrative Procedure481 apply. 

Besides  the  employer  violating  an  employee’s  rights  resulting  from  an  employment 
agreement,  inter  alia,  referring  to  working  time,  or  parenthood-related  rights,  the 
employer also commits a misdemeanour (Article 281(5) LC). Additionally, the Penal Code 
of 1997 provides, in very serious and notorious cases of violations of employees’ rights, 
for a maximum penalty of up to two years’ imprisonment (or a fine or restrictions to the 
convicted person’s liberty) (Article 218 CC). Criminal punishment of a deprivation of liberty 
for  up  to  three  years  may  also  be  imposed  in  the  most  serious  instances  of  sexual 
harassment  (Article  199  CC).  In  2011,  the  legal  measures  were  supplemented  by  the 
criminalisation of stalking (Article 190a CC).  

11.6.2 Effectiveness, proportionality and dissuasiveness 

The labour courts properly indicate that the wording ‘compensation in the amount of not 
less  than’,  without  setting  an  upper  limit,  allows  for  differentiation  of  the  amount  of 
compensation, depending on the type and severity of the discriminatory behaviour of the 
employer and its consequences. Unfortunately, there is no reliable data as to the level of 
compensation  awarded  in  cases  of  gender  discrimination.  On  the  basis  of  some  press 
information,  one  may  estimate  that  the  average  level  of  compensation  in  sex 
discrimination cases varies on average from one to five times the minimum monthly wage, 
and  only  tends  to  be  higher  in  exceptional  cases  (the  maximum  amount  awarded  was 
approximately EUR 22 053 (PLN 100 000)). Compensation in the amounts usually awarded 
is not likely to have a dissuasive effect.  

480  The tasks have been defined in Article 10. JoL 2007 No. 89 Item 589 (consolidated text JoL 2015 Item 

640). They were extended to citizens of other EU and EFTA countries in the field of elimination of employee 
discrimination by the Law of 29 April 2016 on the amendment of the Law on the promotion of employment 
and institutions of the labour market, the law on the State Labour Inspectorate and the Anti-Discrimination 
Law, JoL 2016 Item 691. This change was connected with the implementation by Poland of Directive 
2014/54/EU. 

481  Kodeks postępowania administracyjnego of 14 June 1960 consolidated text JoL 2018 Item 2096.  

147 

 
 
 
 
 
 
 
 
In  the  past  years,  the  statistics  of  the  Ministry  of  Justice  show  that  compensation  for 
discrimination awarded  by courts was also within these limits.482 It is worth noting that 
during the above period of time, in only one case (in 2015) compensation was awarded 
for sexual harassment (of a man) in the amount of EUR 593 (PLN 2 687) (exactly double 
the amount of the minimum wage for this year). The total amount of compensation in all 
cases  of  discrimination  (regardless  of  the  grounds  (reasons))  adjudged  by  regional  and 
district courts together acting as the first instance, were as follows: in 2015 – in the case 
of six women – the total compensation amounted to PLN 34 761 (EUR 7 666), which gives 
an  average  per  capita  of  PLN  5  793  (EUR  1  278).  In  the  case  of  men  (five),  the  total 
amount  of  compensation  was  PLN  100 483  (EUR  22  160),  which  gives  PLN 20 983 
(EUR 4 627) per person. In a further case PLN 15 000 (EUR 3 308) of compensation for 
moral injuries was agreed for a man. 

In 2016, data for total compensation amounted to PLN 97 616 (EUR 21 527) for 5 women, 
which gives an average amount per capita of PLN 19 535 (EUR 4 308), and in the case of 
10 men, the total was PLN 96 627 (EUR 21 309) and an average per capita of PLN 9 662 
(EUR 2 131). Moreover, one compensation amount of PLN 500 (EUR 110) was awarded to 
a man for moral injuries.  

In 2017, four women received compensation amounting to PLN 14 925 (EUR 3 291), an 
average per capita of PLN 3 731 per person (EUR 823), whereas in the case of three men, 
a total of PLN 30 400 (EUR 6 704) was awarded, on average PLN 10 133 (EUR 2 235) per 
capita. No compensation for moral injury was awarded.  

In 2018, the total amount of awarded damages for 19 women amounted to PLN 142 381 
(EUR 31 399), which was an average of PLN 7 493 (EUR 1 652) per person, and in the 
case  of  14  men,  PLN  99  286  (EUR  21  896),  which  gave  an  average  of  PLN 7 091 
(EUR 1 564)  per  person.  In  addition,  one  amount  of  compensation  for  moral  injuries  of 
PLN 19 000 (EUR 4 190) was ordered for a man. 

It is worth noting that the district courts when considering cases as second instance ruled 
on compensation in much lower amounts than some regional courts.  It can be assumed 
that the cases were the same as those against which an appeal was filed, as a result of 
which the amount of compensation was reduced (the awarded damages by the court of 
second instance in the case of women amounted to PLN 34 667 (EUR 7 645). In two cases, 
compensation of PLN 50 000 (EUR 11 027) was awarded for moral injuries in one case, 
and PLN 4 032 (EUR 889) in the other.  

No data for the years 2019 and 2020 was available. 

Looking  at  the  amount  of  damages  awarded,  the  following  remarks  come  to  mind.  The 
way  statistical  data  is  collected  does  not  make  it  possible  to  determine  the  amount  of 
damages awarded in individual cases (hence the calculation of the average per person), 
or to distinguish cases of gender discrimination (with the exception of sexual harassment). 
On the basis of this data it is also impossible to know whether the data corresponded to 
the amount of material damage actually suffered, or whether they were punitive sanctions 
for  discriminatory  practices.  It  is  worth  noting  that  in  just  five  cases,  compensation  for 
moral injuries was awarded in addition to damages, which indicates, among other things, 
a correct interpretation of the notion of ‘damage’ used in Article 183d of the LC (as covering 
both material and moral injuries).  

However,  taking  into  account  the  above-mentioned  reservations,  it  is  impossible  not  to 
notice that the average amount of awarded damages per person, with small exceptions, 
still remains relatively low (from two to five times the minimum monthly wage). It is also 

482  The minimum remuneration in those years increased from PLN 1 750 (EUR 386) in 2015 to PLN 2 100 

(EUR 463) in 2018. 

148 

 
 
 
 
 
 
 
 
 
visible that in the case of men, most of the average damages per person are higher than 
in  the  case  of  women,  which  requires  further  examination.  The  low  average  amount  of 
awarded damages per person may also be the result of low demands made by claimants. 
Namely, the possibilities of claiming high amounts of compensation for discrimination are 
significantly limited by the provision of Article 35(1) of the Law on the courts costs in civil 
matters,  which introduces a  relative fee in  employee cases if the value  of the object  of 
dispute or object of complaint exceeds PLN 50 000 (EUR 11 027). Therefore, it has been 
postulated in the literature to change this provision by stating that, if the amount indicated 
in  the  claim  exceeds  PLN  50 000  (EUR  11 027),  the  introduction  of  a  fixed  fee  in 
discriminatory cases should be postulated.483 

In  any  case,  however,  it  is  difficult  to  suppose  that  the  damages  and  compensations 
awarded  by  courts  in  the  last  five  years  had  a  sufficiently  dissuasive  effect  on  the 
perpetrators of discrimination, and thus could effectively prevent this phenomenon.  

As  already  mentioned,  the  administrative  proceedings  conducted  by  the  State  Labour 
Inspectorate, particularly in cases of violations of pregnant women's health protection or 
parental  rights,  are  considered  to  be  rather  effective.  In  April  2014,  the  Inspectorate 
published  the  results  of  its  investigation  into  the  layoffs  of  persons  returning  from 
maternity,  paternity,  and  parental  leave  and  the  observance  of  other  employee  rights 
related to childcare. This investigation covered 581 companies. Practice shows that one 
can often achieve more through direct contact between the Labour Inspectorate and the 
employer, than by going to court.484 

The  practical  significance  of  penal  law  sanctions  in  discrimination  cases  was  minor,  not 
least because all sexual crimes were traditionally prosecuted not ex officio, but only at the 
victim’s request. In 2013, the situation changed insofar as that currently, it is only stalking 
that is prosecuted at the victim’s request. There is no data on the role of PC provision in 
relation to fighting the most serious cases of sexual harassment qualified in Article 198 of 
the PC. The decision of the Court in Olsztyn of 27 December 2018, recognising the former 
President  of  the  town  of  Olsztyn  as  not  being  guilty  of  rape  and  sexual  harassment,  is 
discouraging.  The  ex-President  had  been  found  guilty  and  condemned  for  five  years  of 
absolute imprisonment by the Regional Court in Ostróda. This ruling was then overturned 
(after eight years of criminal proceedings) by the District Court in Olsztyn, declaring the 
accused innocent.485 

The cases of sex discrimination in access to goods and services, mentioned in Section 9.9 
of  this  report  (the  stroller  case  and  the  breastfeeding  mother  case)  indicate  that  the 
sanctions  applied  on  the  basis  of  the  Code  of  Contraventions  for  unjustified  refusal  to 
provide services or sell a product, must be considered as extremely lenient and did not 
meet the standards of effectiveness, proportionality and dissuasiveness. However, these 
types  of  cases  found  application  only  exceptionally,  so  it  is  difficult  to  generalise  such 
conclusions.  Nothing  may  be  said  about  the  damages  which  may  be  agreed  in  sex 
discrimination cases on the basis of the Anti-Discrimination Law, because this law has not 
yet been applied to cases involving this kind of discrimination.  

483  Jędrejek G., ‘Dochodzenie roszczeń związanych z mobbingiem, dyskryminacją i molestowaniem. 

Zagadnienia prawne’, (Enforcing claims of bullying, discrimination and harassment. Legal issues), 
Warszawa 2017 r, p. 390.  

484  The report indicates, inter alia, that in cases of violation of the law, employees rarely go to court. Even in 
cases where the inspectors themselves referred matters to the court, the persons concerned often backed 
out of the proceedings and cases were frequently remitted. Cf.: 
https://www.pip.gov.pl/pl/f/v/100996/sprawozdanie2013.pdf. 

485  https://www.fakt.pl/wydarzenia/polityka/byly-prezydent-olsztyna-czeslaw-malkowski-uniewinniony-od-

zarzutu-gwaltu/wqpshrb.  

149 

 
 
 
 
 
 
 
 
 
11.7 Equality body  

The Commissioner for Human Rights (RPO) is designated as the equality body, according 
to Article 19 of the Anti-Discrimination Law. This body covers all grounds, including sex. 
The purpose of the RPO, in light of the Constitution, is assistance in protection of one’s 
freedoms  or  rights  infringed  by  bodies  of  public  authority,  including  the  rule  of  equal 
treatment (Article 1 of the Law on RPO as amended by the Anti-Discrimination Law). In 
such situation the RPO may examine the case or choose to address respective bodies with 
a request to examine the case (Article 12). In addition to the above, it may also, acting 
on behalf of the citizen, initiate proceedings in civil, penal or administrative courts, as well 
as  join  proceedings  that  are  ongoing  (Article  14).  Since  30  August  2015,486  the 
Commissioner for Human Rights may, in addition to the right to initiate a case before the 
Constitutional Tribunal, join and participate in any proceeding pending before this Tribunal. 
However, in cases where the infringement of a citizen’s rights occurs as a result of actions 
of  individual  persons  or  private  entities,  the  competences  of  the  RPO  are  limited  to 
indicating the proper way of proceeding and examining whether the authorities responded 
properly to the citizen’s claims (Article 11(2) of the Law on RPO). The RPO in such case 
may not request e.g. the initiation of proceedings, or admittance as a participant of the 
proceedings (which is possible when the violation has been caused by a public authority). 
This is a serious barrier to achieving effective protection from discrimination, which in most 
cases is committed by private actors. Tasks of the RPO also include analysing, monitoring 
and  supporting  equal  treatment,  as  well  as  conducting  independent  studies  and  issuing 
recommendations regarding equal treatment (Article 17b). 

The  Commissioner  for  Human  Rights  takes  proactive  actions  directed  at  combating 
discrimination. For example, he systematically addresses, among others, the Minister for 
Family, Labour and Social Policy with questions regarding her actions aimed at combating 
the  gender  pay  gap.  The  Commissioner’s  competences  in  the  area  of  enforcing  the 
principle of equal pay include analysis, monitoring487 and support, conducting independent 
issuing 
research  as  well  as  developing  and 
recommendations (Article 17b of the Law on the RPO). Since 2013, the Government has 
promised to undertake radical steps to eliminate the gender pay gap. The Commissioner 
has  regularly  asked  the  Ministry  in  charge  of  labour  matters  to  make  progress  in  this 
regard.488 In the event of signals regarding the existence of pay discrimination, he may, 

independent  reports  and 

issuing 

486  See Article 16(2 point 3) of the Law on the Commissioner for Human Rights, as amended by Article 130 of 

the Law of 25 April 2015 changing the Law on the Constitutional Tribunal. JoL 2015 Item 1064.  

487  The Commisioner for Human Rights monitored the implementation of the National Action Programme for 

Equal Treatment for 2013–2016, the preparation and coordination of which the Government Plenipotentiary 
for Equal Treatment was responsible for. As part of the monitoring activities, the Ombudsman pointed out 
that the family, labour and social policy department did not fulfil the task planned for the first quarter of 
2017 and failed to prepare and disseminate the report on the analysis of international law and good 
practices in counteracting the pay gap phenomenon in selected countries (RPO Annual Information for 2017 
(Informacja o działalności Rzecznika Praw Obywatelskich oraz o stanie przestrzegania wolności i praw 
człowieka i obywatela w roku 2019, https://www.rpo.gov.pl/pl/content/informacja-roczna-rpo-2019). 

488  For example, in 2014, the Ombudsman asked the Minister of Labour and Social Policy to provide 

information on what actions were taken to promote the principle of equal remuneration for women and men 
for equal work or work of equal value, and whether it is consider to undertake legislative initiative 
introducing to labour law the obligation to pay transparency (especially in case of entrepreneurs 
implementing public procurement), 
(https://www.rpo.gov.pl/sites/default/files/Do_MPiPS_ws_niwelowania_roznic_w_wynagrodzeniach_kobiet_
i_mezczyzn.pdf). In 2016, an enquiry was submitted on tackling the wage gap and the implementation of 
the European Commission’s recommendations covering the introduction of pay transparency obligations 
into labour law was renewed, 
(https://www.rpo.gov.pl/sites/default/files/Do_MRPiPS_ws_roznic_w_wynagrodzeniach_kobiet_i_mezczyzn.
pdf). In 2017, the RPO requested clarification from the Minister of Family, Labour and Social Policy on the 
current activities regarding the dissemination of knowledge about the negative phenomenon of the wage 
gap and the application developed by the Ministry to estimate the gender wage gap, 
(https://www.rpo.gov.pl/sites/default/files/Wyst%C4%85pienie%20do%20Minister%20Rodziny%2C%20Pr
acy%20i%20Polityki%20Spo%C5%82ecznej%20w%20sprawie%20dzia%C5%82a%C5%84%20maj%C4%
85cych%20na%20celu%20zniwelowanie%20zjawiska%20luki%20p%C5%82acowej.pdf). 

150 

 
 
 
 
upon  application  or  ex-officio,  examine  the  situation  or  choose  to  address  respective 
bodies with a request to explore the matter (Article 12 of the Act on the RPO).  

The Commissioner for Human Rights also asked about the plans and actions regarding the 
documents relating to withdrawal of ratification of the Istanbul Convention. Recently, the 
Commissioner  joined  the  proceedings  before  the  Constitutional  Tribunal  concerning  the 
motion of the Prime Minister to examine the compatibility of the Istanbul Convention with 
the  Polish  Constitution,  and  requested  that  the  proceedings  be  discontinued  on  the 
grounds that the application did not meet the basic formal requirements.489  

An  important  intervention  by  the  Commissioner  was  sent  to  the  Minister  of  the  Family, 
Labour and Social Policy on 14 August 2017, asking about the inclusion of matters relating 
to achieving a work-life balance, in the draft law amending the Labour Code, as prepared 
by the Labour Law Codification Committee. He also requested general information on the 
progress  of  the  Committee’s  work  in  the  above  matter  and  on  its  conclusions  and 
recommendations. The Commissioner also requested information on the progress of the 
work at the Ministry regarding the amendment of the law on care for children under the 
age of three, which was supposed to facilitate the creation of new care institutions, while 
at the same time safeguarding the safety of children, thus assisting mothers in achieving 
a work-family balance.490 

The  Commissioner  also  joins  court  proceedings  regarding  discrimination  against 
transsexual persons, provided they are proceeding against public authorities. For example, 
he joined the proceedings currently being conducted before the District Court in Wrocław, 
regarding  the  determination  of  the  sex  of  a  transsexual  man,  who  after  having  partial 
surgery gave birth to a child.491 

11.8 Social partners  

According to the Law of 23 May 1991 (consolidated text JoL 2015, Item 1881, with further 
amendments) trade  unions may play a  rather  significant role  with respect to protection 
from  discrimination,  both  inside  and  outside  the  judicial  system,492  in  particular,  by 
monitoring the application by employers of labour provisions with regard to employees. 493  

The  provision  of  Article  61  provides  non-governmental  organisations,  as  well  as  other 
social  organisations,  with  the  right  to  actively  participate  e.g.  in  proceedings  regarding 
violations  of  the  equal  treatment  and  non-discrimination  rules.  They  may,  in  particular, 
bring actions on behalf of their members, as well as join pending proceedings. If they do 
not  participate  in  proceedings,  they  have  the  right  to  present  opinions  to  the  court 
(Article 63).  However,  this  is  only  possible  in  cases  which  lie  within  the  scope  of  their 
statutory duties and are subject to the written consent of an employee.  
The possibility of participation of social organisations is covered by additional regulations 
in provisions on cases recognised by labour and social insurance courts. In such cases, an 
employee  or  insured  person  may  be  represented,  e.g.  by  an  agent  of  a  trade  union 
(Article 465 CPC). An NGO might also – subject to the written consent of an employee or 
insured  person  –  bring  actions  on  his  behalf  and  join  pending  proceedings  (Article  462 
CPC). However, in practice, these organisations do not play an important role. The first 

489  https://wyborcza.pl/7,75398,26226894,rzecznik-praw-obywatelskich-broni-konwencji-

antyprzemocowej.html. 

490  https://www.rpo.gov.pl/pl/wystapienia-generalne?page=2.  
491  Resolution of 7March 2016, IAca1830/15. 
492  In the scope of the protection of collective rights, the trade unions represent all employees. In matters of 
individual claims, in principle, trade unions represent the interests of their members, however, on request 
may also defend the rights of non-members. Kęczkowski, M., Związki zawodowe ich rola w polskich 
zakładach pracy (The Trade Unions and their role in Polish enterprises), Płock, 2005. 

493  The active participation of trade unions is explicitly required in the Labour Code, inter alia, in cases of 

dissolving a contract without notice, reviewing appeals against imposition of a disciplinary penalty. Every 
such situation can be viewed in a context of unequal treatment on the grounds of sex. 

151 

 
 
 
 
 
 
 
 
case where an NGO (Polskie Towarzystwo Prawa Antydyskryminacyjnego) lodged a claim 
in the name and upon the consent of a person who felt discriminated against, was the case 
of  the  woman  breastfeeding  in  a  public  restaurant  (mentioned  in  Section  9.9  of  this 
report).  It  is  characteristic  that  in  this  case,  the  court  performed  a  very  exhaustive 
examination  of  whether  initiating  a  claim  on  behalf  of  citizens  was  within  the  statutory 
scope of the NGO’s activities. In the above case, the court accepted the NGO’s procedural 
legitimation with regard to discrimination claims, while  refusing it with regard to  claims 
for damages for violation of personal rights regulated in the civil code.  

The role of collective agreements in promoting equal treatment of women and men and 
preventing  gender  discrimination  is  insignificant.  Such  agreements  can  be  concluded  at 
the  level  of  an  individual  enterprise,  a  part  of,  or  the  whole  branch  of  an  employment 
sector (Articles 238-241 LC). An analysis of the collective labour agreements at enterprise 
level494 indicated that they very seldom include regulations which are more favourable for 
employees than the minimum stipulated in the provisions of labour law. More often they 
simply repeat the Labour Code provisions on equal treatment. This trend is coupled with 
an increased frequency of cases where the parties to collective labour agreements suspend 
the application of the entire agreement or a part thereof. 

11.9 Other relevant bodies 

According to Article 18 of the 2010 Anti-Discrimination Law, ‘Performance of tasks related 
to  the  implementation  of  the  principle  of  equal  treatment’  shall  be  entrusted  to  the 
Government  Plenipotentiary  for  Equal  Treatment  (besides  the  Commissioner  for  Human 
Rights (RPO)).  

While  the  RPO  is  an  independent  body,  the  Plenipotentiary  is  a  body  in  charge  of  non-
discrimination policies and the coordination of governmental efforts. It is the reason why 
the status of Plenipotentiary does not meet the requirements of  an equality body in the 
meaning of EU law. The Plenipotentiary has, however, several important competences in 
the  field  of  equal  treatment.  It  prepares  and  presents  to  the  Council  of  Ministers  the 
National Programme of Activities for Equal Treatment (Krajowy Program Działań na rzecz 
Równego  Traktowania)  and  then  reports  on  its  execution  annually.  Other  competences 
include preparing draft laws related to equal treatment and preparing opinions about such 
drafts.  It  has,  in  addition,  a  number  of  analytical  and  monitoring  competences.495  The 
Plenipotentiary  is  responsible  for  the  promotion  of  equal  treatment;  international 
cooperation; and implementing projects that support equal treatment and counteracting 
discrimination.  

Despite being equipped with broad competence in the field of equal treatment, not every 
person appointed to the post of Plenipotentiary uses these opportunities in practice, which 
is  particularly  the  case  with  Mr  Lipiński,  currently  performing  the  function  of 
Plenipotentiary.496 After parliamentary elections that took place on 25 October 2015, the 
office  of  the  Plenipotentiary  for  Equal  Treatment  was  annulled  and  renamed 
‘Plenipotentiary for Civil Society and Equal Treatment’. Also, consecutively, new persons 
were  appointed  to  the  post  of  Plenipotentiary,  however,  nobody  with  a  track  record  of 
dealing with equal treatment issues and known among NGOs acting in this field. Currently, 
most of the activities of the current Plenipotentiary target general issues of civil society 
and  the  problems  of  gender  equality  have  marginal  significance  on  his  agenda.497  The 

494  Information received from Women’s Section of the Trade Union ‘Solidarność’. 
495  The Plenipotentiary may establish special research teams, call for specific research or expert analysis and 

provide reports based on this research. It may also issue recommendations.  

496  However, Prof. M. Fuszara, for example – the Plenipotentiary in the years 2014-2015, appointed by the 

former Government – had considerable achievements. The ratification by Poland of the Istanbul Convention 
and the initiation of actions aimed at elimination of the pay gap may be attributed to her as one of her 
personal achievements.  

497  In January 2019, the ROP asked the Plenipotentiary for information on his monitoring activities in 2018, 

with regard to observation of the principle of equal treatment and non-discrimination. In response, Adam 

152 

 
 
 
 
 
 
 
 
latter corresponds well with the general policy line of the ruling party, ‘Law and Justice’ 
(PiS).498 

11.10 Evaluation of implementation 

The  implementation  of  the  Directive  with  regard  to  the  equality  body  is,  from  a  formal 
point of view, correct. However, in practice, the role which the Commissioner may play is 
rather  limited.  It  results  from  the  legal  formulation  of  the  Commissioner’s  mission  and 
mandate.  In  particular,  the  Commissioner’s  competences  after  his  mandated  had  been 
extended (on duties of equality body) did not change significantly and are still focusing on 
the protection of citizens’ rights in the situation when  the violations occur as a result of 
the  actions  of  state  (public)  organs.  In  cases  where  the  infringement  of  citizens’  rights 
occurs  as a result  of actions of individual persons  or private  entities,  the Commissioner 
may only monitor the adequacy of the  reaction of the appropriate state organs on such 
infringements.  

11.11 Remaining issues 

There are no additional issues to raise.  

Lipiński presented eight of his interventions in such cases, of which only two concerned gender 
discrimination. The first was concerning an attempt to throw a woman in a burqa out of a public bus. In this 
case, the Plenipotentiary turned to the director of the bus company asking for information about the 
circumstances of the incident (the director explained the improper reaction of the bus driver by ‘deficiencies 
of procedure’, which the Plenipotentiary found as satisfactory). The second case was to draw the attention 
of the Mayor of Legionowo to the sexist way he presented the candidates for the city and district councils. It 
is also significant that from the list submitted to the RPO of 11 NGOs acting in the field of equal treatment, 
with which the Plenipotentiary met in 2018, there was not one women's NGO. 
https://www.rpo.gov.pl/pl/content/czym-w-2018-r-zajmowa%C5%82-sie-pelnomocnik-rzadu-ds-rownego-
traktowania.  

498  In fact, when Law and Justice was last in power (a coalition of three parties – Law and Justice; Self-

Defence; and League of Polish Families), the post of the Plenipotentiary was abolished (on 3 November 
2005). It was re-established (in March 2008) only after new elections resulted in change of the 
government. Also, the situation of the Plenipotentiary has changed; before 2011, s/he was appointed based 
on the Ordinance of the Council of Ministers; since January 2011, based on a parliamentary act (namely the 
Anti-Discrimination Law Act). 

153 

 
 
 
 
 
 
 
12  Overall assessment  

The following transposition problems were mentioned in this report: 

1. 

2. 

3. 

4. 

5. 

Regulating sex discrimination together with discrimination on other grounds.  
As a result, existing legislation is unclear and vague, making it extremely difficult 
to understand and interpret, even for lawyers.  
Incorrectly implemented definition of sexual harassment. 
According  to  Polish  regulations,  the  definition  of  sexual  harassment  also 
encompasses harassment related to sex, while in EU law it is treated as a separate 
central concept.  
Not entirely correct definition of direct discrimination in the Labour Code.  
The definition of direct discrimination in the LC is not entirely correct with regard to 
the hypothetical activities  of  employers.  The  Labour Code  speaks  of a comparable 
situation  not  in  the  context  of  another  employee,  but  refers  to  a  ‘comparable 
situation’ to the employee being discriminated against. 
Lack of an explicit regulation relating to discrimination on the grounds of gender 
identity, discrimination by association and discrimination by assumption, as well as 
multiple and intersectional discrimination. 
Too wide a scope of exemptions provided for in the Anti-Discrimination Law. 
The scope of exemptions provided for in the Anti-Discrimination Law includes a wider 
range  of  exceptions  to  the  equal  treatment  rule  than  those  provided  for  in  Article 
14(2)  of  Directive  2006/54/EC.  The  exceptions  cover  not  only  performing 
professional activity, but also undertaking access to professional activity (including 
training);  not  only  undertaking  access  to  the  vocational  training,  but  also 
participating in such training and completing it.  

6.  Multiplication of the various types of leave related to the birth and care of a child, 

to  one 

leave  within 

type  of  parental 

each having different consequences and a different form. 
This  applies  in  particular  to  two  types  of  leave  under  Polish  law  relating  to  the 
upbringing  of  a  child  (parental  and  childcare  leave),  which  seem  to  correspond 
functionally 
the  meaning  of 
Directive 2010/18/EU. There is no indication of the purpose that such differentiation 
is supposed to serve. 
An incomplete implementation of the regulation introducing one month's non-
transferable leave for each parent. 
The problem concerns implementation of Clause 2 Section 1 of Directive 2010/18, 
which refers to one month's non-transferable leave, which must be taken by one of 
the  parents.  The  two-week  paternity  leave  provided  for  in  Article  1823  of  the  LC, 
which  may  be  taken  only  by  the  child's  father,  does  not  seem  to  be  a  sufficient 
solution.  
Not fully satisfactory implementation of EU regulations dealing with flexible working 
time arrangements.  
Besides other arrangements, the Labour Code introduced regulations, which restrict 
special opportunities to adjust working time patterns only to parents of children with 
disabilities. 
Limiting the Law on counteracting family violence only to family violence.  
This does not include a gender perspective, nor a definition of economic violence.  

7. 

8. 

9. 

10.  The limited role of the Commissioner for Human Rights as an equality body. 

The  Commissioner’s  competences  focus  on  the  protection  of  citizens’  rights  in  the 
situation when the violations occur as a result of the actions of state (public) organs. 
In cases where the infringement  of  citizens’ rights occurs as a  result of actions  of 
individual  persons  or  private  entities,  the  Commissioner  may  only  monitor  the 
adequacy of the reaction of the appropriate state organs on such infringements.  

The  implementation  of  the  EU  gender  equality  acquis  in  Poland  used  to  be  rather 
satisfactory,  generally  speaking,  even  if  some  provisions  and  solutions  still  required 
amendments.  This  assessment  had  to  be  changed,  however,  given  the  adoption  of 

154 

 
 
 
 
legislation reinstating different pension ages, after the short period of movement towards 
equalisation  (see  Section  7.5),  which  means  that  Poland  is  moving  away  from  the  EU 
acquis in this respect. It should further be noted that the transposition process of various 
anti-discrimination directives at national level was long and arduous and is still unfinished. 
The main source of problems was the common belief that such transposition, in order to 
be complete, should not literally copy the formulations of the directives. It was believed 
that the adopted provisions, which were often too general in comparison with the directive 
and contained many possible legal gaps, could be supported by the application of general 
rules  of  interpretation  of  the  law,  in  particular  the  rule  that  national  law  must  be 
interpreted in conformity with EU law.  

The process of the transposition of selected EU equality directives into the Polish Labour 
Code  had  already  been  initiated  before  Poland’s  accession  and  it  had  a  progressive 
character:  in  2001,  a  new  Section  called  ‘equal  treatment  of  women  and  men  in 
employment’ was adopted. In 2003, this Section was renamed and modified so as to allow 
the application of its provisions also to instances of discrimination based on grounds other 
than gender.  The Law  of 2004  on the Promotion of Employment and  Institutions of the 
Labour  Market,  dealing  with  discrimination  in  the  access  to  hiring  or  job  training, 
accomplished the process of the transposition of equality directives in the field of access 
to work. In 2006, 2008, 2013, 2014, 2015 and 2018, further amendments to the Labour 
Code were introduced, revising the central concepts and dealing mainly with the protection 
of women’s health during pregnancy, extension of maternity and paternity leave and also 
providing for different forms of flexible working-time arrangements. In 1998, the general 
reform  of  the  mandatory  social  insurance  system  took  place.  The  Law  on  Occupational 
Pension  Schemes  of  2004  to  a  certain  extent  achieved  general  compliance  with  EU 
directives,  but  failed  to  transpose  many  of  its  specific  provisions.  In  2011,  the  Anti-
Discrimination  Law  entered  into  force,  supplementing  labour  law  provisions  regulating 
access to employment and vocational training, and providing for horizontal protection in 
cases  of  violation  of  the  principle  of  equal  treatment  in  the  access  to  goods  and  some 
services. As a result of these legislative changes, the labour law as well as social security 
law and the regulation of access to goods and some services, correspond, in general, with 
the  requirements  of  the  EU  gender  equality  directives.  However,  when  it  comes  to  the 
transposition  of  particular  EU  concepts  and  regulations,  despite  several  consecutive 
amendments, the legislation still shows some inadequacies and deficiencies. Sometimes, 
binding  law  provisions  are  overprotective,  e.g.  in  the  prohibition  of  the  performance  of 
certain activities by all pregnant women. At the same time, other provisions, e.g. regarding 
sex-related  harassment  in  the  Labour  Code,  or  damages  in  cases  of  discrimination 
according  to  the  Anti-Discrimination  Law,  do  not  implement  the  respective  directives 
properly.  In  addition,  the  actions  of  the  legislator  aimed  at  applying  the  provisions  on 
equal treatment in employment to instances of discrimination based on reasons other than 
gender,  resulted  in  some  detrimental  aspects  in  the  field  of  protection  against 
discrimination  based  on  sex.  For  example,  exceptions  to  the  equal  treatment  principle 
provided  in  the  Labour  Code  no  longer  refer  to  pregnancy,  but  to  parenthood  only.  In 
addition,  questions  may  be  raised  as  to  whether  the  equality  body’s  mandate  and 
resources are adequate for its activities. 

The Polish system of childcare-related leave has been developed over many years. Legal 
solutions regarding particular types of leave have been introduced at different times and 
then  frequently  modified,  which  has  caused  them  to  become  inconsistent  and  overly 
complicated. Until 2 January 2016, this complexity resulted both from the multiplicity of 
different  types  of  leave  (there  were  seven  types),  as  well  as  from  diversified  rules  for 
granting them. This system has been significantly simplified by the Law of 24 July 2015, 
and has become more compatible with EU law. Nevertheless, different terminology leads 
to  numerous  confusions  and  misunderstandings.  In  addition,  not  all  maternity  benefits 
meet the requirement of sufficiency and the special procedure for granting a worker the 
possibility to perform work on conditions of flexible working time, for family reasons, has 
not  yet  been  fully  established.  Also,  certain  solutions,  such  as  services  supplying 

155 

 
 
 
temporary  replacements  for  self-employed  women  on  parental  leave,  should  be 
introduced.  

An important shift in social policy, unfavourable for equal treatment, took place with the 
change in Government after the 2015 election, in which the conservative party,  Prawo i 
Sprawiedliwość  –  PiS  (Law  and  Justice),  gained  parliamentary  majority.  The  declared 
priority  of  the  current  Government  is  the  pronatalist  traditional  family  policy,  which  is 
reflected in some practical financial moves, such as the introduction of Family 500 plus, in 
a law introducing a new child-raising benefit.499 The new benefit was initially intentionally 
designed to be more preferential for traditional nuclear families with two or more children, 
which  was  criticised  for  being  discriminatory  against  one-child  and  one-parent  families. 
The extension of the eligibility for this benefit also for every first child, not depending on 
the  financial  situation  of  family,  has  weakened  this  criticism.500  However,  on  the  other 
hand,  it  even  more  effectively  discourages  mothers  of  one  or  several  children  from 
undertaking their employment.501 The decrease in the number of working mothers after 
the introduction of the 500+ programme has been confirmed by scientific research. 502 In 
2019, a special family benefit (in the form of the lowest pension) will also be introduced 
for  mothers  of  at  least  four  children  who  have  not  taken  up,  or  have  interrupted,  their 
professional  career,  due  to  raising  the  children.503  In  addition,  the  anti-discriminatory 
institutional  infrastructure  has  been  limited  (by  the  dissolution  of  the  Council  for  the 
Prevention  of  Racial  Discrimination,  Xenophobia  and  Intolerance  (Rada  do  spraw 
Przeciwdziałania Dyskryminacji Rasowej, Ksenofobii i związanej z nimi Nietolerancji)504 and 
– most importantly – by further systematic cuts in the budgetary fund for the activities of 
the Commissioner for Human Rights – the only public institution that is actively defending 
citizens’  rights to  equality and non-discrimination).505 On the  other hand, the capacities 
and effectiveness of the activities of the Office of Governmental Plenipotentiary for Equal 

499  Law of 11 February 2016 on state aid in the raising of children (JoL 2016 Item 195) in force from 1 April 
2016. In November 2016, a new benefit for mothers of disabled children was introduced. The law of 4 
November 2016 on support for women in pregnancy and delivery ‘Pro-life’ (JoL 2016 Item 1860) introduces 
special rights for pregnant women with regard to access to medical care services, as well as several other 
instruments of family policy. In particular, it guarantees a one-time benefit of approximately EUR 900 
(PLN 4 000), regardless of the income status, for every woman who gives birth to a child that has been 
diagnosed with severe, irreversible disability or incurable disease endangering the child’s life, which 
materialised in the prenatal phase or during delivery. The benefit will be granted to the parents or care-
givers of the child, if a specialist doctor (gynaecologist, obstetrician, neonatologist, perinatologist) has 
diagnosed such disability or disease. 

500  However, this programme does not bring the expected results. The 2018 research conducted by I. Magda 
and I. Kotowska shows that the slight increase in birth rate (by 12 000 children) should be combined with 
the ongoing demographic changes and changes of labour code favourable for parents (extension of paid 
childbirth/care-related leave, rather than with the funds obtained from the Family 500 plus programme). It 
was found that the decrease in child poverty was not as visible as expected (it was expected to occur by 
75-100 %, and in fact, it was 41 % among the children from the poorest families). It is related, inter alia, 
to the fact that only 37 % of the money from this programme goes to real poor families, while the 
remaining part goes to families that do not need help, or even to wealthy families. Cf.: ‘Gazeta Wyborcza’ 
daily newspaper of 8 May 2019, p. 13.  

501  Cf.: ‘Gazeta Prawna’ (2014), ‘Samotny rodzic ma mniejsze szanse na 500 zł na dziecko’ (Single parents 

with less chance of PLN 500 for their child) of 9 December 2014. 
http://praca.gazetaprawna.pl/artykuly/910063,samotny-rodzic-500-zl-na-dziecko-szanse.html, Gazeta.PL 
(2016), ‘Mieć więcej dzieci Rzecznik klubu PiS radzi samotnym matkom bez 500 plus’ (‘Have more children 
Chairman of the PiS parliamentary club advises single mothers without 500 plus’), 03 February 2016. The 
reaction of the President’s Minister was similar, regarding teachers’ pay protests (he said that the teachers 
do not have to live in celibacy, so may take advantage of the 500+ programme for every child).  

502  It has been found by the Main Statistical Office that, after this reform, the number of persons willing to 

work has decreased by approximately 300 000 and among women of the age group 25-34, the ratio was 
the lowest since 2003. The Ministry of the Family, Employment and Social Policy claimed that the causal 
relation of this drop with introduction of the 500 plus programme was not sufficiently proved. 
https://businessinsider.com.pl/finanse/makroekonomia/aktywnosc-zawodowa-kobiet-a-500-plus-
komentarz-ministerstwa/y8m1jz9. 

503  Law of 31 January 2019, JoL 2019 Item 3030.  
504  By Ordinance No. 53 of the President of the Council of Ministers of 27 April 2016, published in the Polish 

Monitor (Monitor Polski) of 29 April 2016 Item 413. 

505  https://www.rpo.gov.pl/pl/content/sejmowa-komisja-finans%C3%B3w-o-bud%C5%BCecie-rpo-decyzje-1-

grudnia.  

156 

 
 
 
Treatment were diminished by expansion of responsibilities of the Plenipotentiary in areas 
other than discrimination,506 by repeated nomination for this post of politicians who are 
not experts in equality issues507 and by the reduction in the number of competent staff of 
the Plenipotentiary’s Office. All this has resulted in the total marginalisation  – and even 
the  absence  –  of  sex  equality  and  gender  discrimination  issues  on  his  agenda. 
Furthermore, since 2016, the Ministry of Justice systematically refused to provide financial 
support for most active women’s NGOs, e.g. Centrum Praw Kobiet (the Centre for Women’s 
Rights) which, among other things, protects and helps victims of gender-based violence.508 

Additionally,  draft  laws  intending  to  prohibit  abortion  are  occasionally  submitted  to  the 
Parliament509  and  a  claim  by  the  group  of  deputies  alleging  that  the  so-called  embryo-
pathological indication for an abortion, provided for by the Law of 7 January 1993, violates 
the Constitution, was lodged before the Constitutional Tribunal on 2 November 2017.  In 
its ruling of 22 October 2020 the Constitutional Tribunal decided that the so-called embryo-
pathological  indication  for  abortion,  provided  for  in  Article  4a  section  (1)  point  2  of  the 
Abortion  Law,  are  contradictory  to  Article  38  (protection  of  life  of  human  person),  in 
conjunction  with  Article  30  (protection  of  humandignity),  in  conjunction  with  Article  31 
section (3) (conditions of admissibility of introduction of restrictions on the enjoyment of 
constitutional rights and freedoms) of the Constitution.510 The verdict was passed by the 
majority  of  votes  of  the  entire  CT’s  chamber,  with  two  dissenting  opinions.  As  a 
consequence, the questioned provision of abortion law loses its legal force. One should be 
aware  that  this  ruling  may  in  practice  mean  a  complete  ban  on  legal  abortion,  since 
abortions  based  on  the  so-called  embryo-pathological  indications,  according  to  official 
statistics, accounted for about 98 % of all legal abortions every year.511  

The  verdict  of  the  Constitutional  Court  triggered  social  protests,  organised  under  the 
banner  of  the  ‘Women’s  Strike’,  among  others.  Manifestations  and  social  protest 
movements  were  fought  by  the  Government,  among  others,  under  the  banner  of 
counteracting pandemic threats.  

The introduction of the selling of emergency contraceptives only upon prescription and the 
tolerance (and sometimes even encouragement) of public authorities for abusive use by 
different  medical  professions  of  the  conscientious  objection  clause  in  the  field  of 
reproductive medicine, combined with the omission of the Minister of Health to realise the 
recommendation of the Constitutional Tribunal which derives from the ruling of 7 October 
2015 (K 12/14), aimed at facilitating the access of women to such services, as well as the 
threats to denounce the Istanbul Convention and the proposal of amendments of the Law 
on family violence, hostile towards the victims, have caused feelings of uncertainty and 
endangerment for many women, mobilising them to participate in protest marches. The 

506  The new remit of the Plenipotentiary is provided for in the Regulation of the Council of Ministers of 8 

January 2016, JoL 2016 Item 3.  

507  In the 2016 Congress of Women, the Plenipotentiary tried to explain to the audience that the ‘wage gap 

and glass-ceiling are only a figment of women’s imagination’ 
http://wyborcza.pl/1,75398,20068732,pelnomocnik-rzadu-ds-rownego-traktowania-i-list-prezydenta.html. 

508  The refusal has been justified by alleged discriminatory activities of this centre and its local branches, which 
do not fulfil their tasks ‘by diverting aid offers only to women’. This explanation constitutes clear evidence 
that the Ministry is not aware of the nature of the phenomena of gender-based violence. Cf.: Gazeta.Pl 
(2016), ‘Rząd odmówił finansowania Centrów Praw Kobiet bo ‘zawężają pomoc do określonej grupy’’ (The 
Government has refused financial support to Centres of Women’s Rights because their aid was ‘narrowed 
down to only a specific group of victims’) 13 May 2016, available at: 
http://wiadomosci.gazeta.pl/wiadomosci/1,114871,20066209,rzad-odmowil-finansowania-centrow-praw-
kobiet-bo-zawezaja.html. 

509  The last draft ‘stop abortion’ concerning the abolition of embryo-pathological indication for abortion, for the 
time being is frozen in the Sejm, but nevertheless, Catholic circles constantly intervene in the matter of its 
further proceedings. Cf.: Ordo Iuris' appeal to Sejm of 26 April 2019, https://ordoiuris.pl/ochrona-
zycia/ludzkie-zycie-wazniejsze-niz-pieniadze-odpowiedz-ordo-iuris-na-zarzuty-biura-analiz.  

510  https://trybunal.gov.pl/postepowanie-i-orzeczenia/wyroki/art/11300-planowanie-rodziny-ochrona-plodu-

ludzkiego-i-warunki-dopuszczalnosci-przerywania-ciazy. 

511  https://pulsmedycyny.pl/oficjalne-dane-o-legalnej-aborcji-w-polsce-1110-zabiegow-przerwania-ciazy-w-

2019-r-999603. 

157 

 
 
 
 
 
tenacious  attitude  of  the  Government  towards  the  teachers’  strike  is  also  symptomatic, 
namely, the categorical refusal to raise their salaries, when at the same time, in order to 
buy voters before the upcoming European and parliamentary elections, the government 
offered  five new social  benefits (including the  so-called 13  retirement benefits  for all  of 
the  nearly  9  million  pensioners).  Such  injustice  can  be  seen  as  indirect  discrimination 
against  women,  given  that  women  make  up  more  than  80  %  of  the  overall  700  000 
teachers, in particular, while remembering the recent Government’s decision to increase 
the salaries of the military and other uniformed services. 

In  the  authors’  opinion,  most  disturbing,  however,  is  the  dismantling  of  the  democratic 
State  performed  by  the  Prawo  i  Sprawiedliwość  (PiS)  party  since  its  electoral  victory  in 
October 2015. For the first time since 1989, one political party holds the majority of votes 
in Parliament. As a result, given the strict disciplinary rigour of its MPs, it is generally able 
to  pass  every  law,  except  for  changing  the  Constitution.  The  PiS  party  takes  huge 
advantage of this possibility, disregarding constitutional standards of proper legislation. In 
particular,  a series of changes to the laws on: the Constitutional Tribunal; the common 
courts  system;  the  Supreme  Court;  the  National  Judicial  Council,  in  connection  with 
personal  changes  in  the  composition  of  the  Constitutional  Tribunal  and  in  the  Supreme 
Court, which has been achieved by imposing an equal retirement age for judges – as well 
as  multiple  personal  changes  in  the  positions  of  common  court  presidents  and  in  the 
composition of the National Council of the Judiciary, have resulted in an increased loss of 
independence  for  those  judicial  institutions.  In  the  current  state  of  affairs  there  is  no 
possibility that the Tribunal would independently uphold any provision passed within the 
PiS party’s programme of so-called good change, unless the party leadership approves it.  

The incapacitation of the Constitutional Tribunal, in connection with propaganda actions 
discrediting  the  judicial  community  and  threatening  them  by  imposing  sanctions  by  the 
newly  created  disciplinary  chamber  of  the  Supreme  Court,512  has  seriously  undermined 
the rule of law and the division of powers. Because of this situation, on 27 July 2016, the 
European Commission adopted a Rule of Law Recommendation on the situation in Poland, 
setting out the Commission’s concerns and recommending how these can be addressed. 
In December 2017, following the lack of a real response to the objections raised by the 
Commission, the Article 7 TUE procedure was triggered against Poland. In the opinion of 
the  Commission,  recent  events  in  Poland  concerning,  in  particular,  the  Constitutional 
Tribunal,  the  Supreme  Court,  the  judiciary  and  the  new  disciplinary  regime  for  the 
judiciary,  have  led  the  European  Commission  to  open  a  dialogue  with  the  Polish 
Government  in  order  to  ensure  full  compliance  with  the  rule  of  law.  The  Commission 
considers it necessary for Poland’s Constitutional Tribunal to be able to fully carry out its 
responsibilities  under  the  Constitution,  and  in  particular,  to  ensure  an  effective 
constitutional review of legislative acts; it also hopes that the newly increased dependency 
of  the  courts  on  the  executive  authority  will  be  reversed.513  It  is,  however,  difficult  to 
expect the  outcome desired by the Commission to be  achieved without further decisive 
action by the EU  institutions. The governmental amendments to the adopted legislation 
on judicial reform514 provide evidence of this fact. They are merely ‘cosmetic’,515 as they 

512  Polish law allows to subject ordinary court judges to disciplinary investigations, procedures and ultimately 
sanctions, on account of the content of their judicial decisions. Also, the new disciplinary regime does not 
guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court which 
reviews decisions taken in disciplinary proceedings against judges. This Disciplinary Chamber is composed 
solely of new judges selected by the National Council for the Judiciary whose judges-members are now 
appointed by the Polish parliament (Sejm), http://europa.eu/rapid/press-release_IP-19-1957_en.htm.  

513  http://europa.eu/rapid/press-release_IP-16-2643_en.htm. 
514  Namely to the Law of 8 December 2017 on the Supreme Court (JoL 2018 Item 5) as amended by the Law 
of 12 April 2018 modifying the Law on the Organisation of the Common Courts, the Law on the National 
Judicial Council and the Law on the Supreme Court, JoL 2018 Item 848.  

515  The Bill of 17 December 2018 has such character – it reinstates the Supreme Court judges who have been 
removed from office when the Law on the Supreme Court entered into force. The reinstatement, as every 
interim measure, will be in force until the case of the European Commission against Poland, brought on 2 
October 2018 to the Court of Justice of the EU, is decided by this Court. The provisions on lowering the 
retirement age of Supreme Court judges, has also been the subject of the question of the Polish Supreme 

158 

 
 
 
 
 
do not change the core of the adopted unconstitutional legal changes and do not provide 
for  any  legal  possibility  to  reverse  the  unconstitutional  changes  undertaken  by  the 
governing political authority.  

Court of 2 August 2019 (III UZP 4/18) for preliminary ruling to the CJEU. The order on reinstatement has 
been taken by the CJEU on 19 October 2018.  

159 

 
 
 
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Wieczorek, M., Bogatko, K., eds. ‘Prawo antydyskryminacyjne w praktyce polskich sądów 
powszechnych.  Raport  z  monitoringu’  (Anti-discrimination  law  in  the  practice  of  Polish 
courts.  Monitoring  Report),  Polskie  Towarzystwo  Prawa  Antydyskryminacyjnego, 
Warszawa 2013. 

Jędrejek  G.,  ‘Dochodzenie  roszczeń  związanych  z  mobbingiem,  dyskryminacją  i 
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In all cases where the  quotation of court decisions  was limited to the  thesis  from  court 
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160 

 
 
 
 
 
 
 
 
 
 
 
 
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