Country report non-discrimination : transposition and implementation at national level of Council Directives 2000/43 and 2000/78 : Poland 2021.
Date: 2021-10-15
Institutions: Directorate-General for Justice and Consumers
Subjects: Poland, age discrimination, anti-discriminatory measure, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, ethnic discrimination, religious discrimination, sexual discrimination, social policy

Poland 

2021 

including summary 

 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.1 Non-discrimination and Roma coordination 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Non-discrimination 

Transposition and implementation at national level of 
Council Directives 2000/43 and 2000/78 

Poland 

Łukasz Bojarski 

Reporting period 1 January 2020 – 31 December 2020 

2021  Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Luxembourg: Publications Office of the European Union, 2021 

© European Union, 2021 

PDF  

ISBN 978-92-76-35931-9 

ISSN 2599-9176  

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Country report - Non-discrimination – Poland – 2021 

CONTENTS 

EXECUTIVE SUMMARY ........................................................................................ 5 
INTRODUCTION ................................................................................................ 14 
GENERAL LEGAL FRAMEWORK .................................................................. 15 
1 
THE DEFINITION OF DISCRIMINATION .................................................... 17 
2 
2.1  Grounds of unlawful discrimination explicitly covered ................................17 

3 

4 

2.1.1  Definition of the grounds of unlawful discrimination within the 

directives ................................................................................. 17 
2.1.2  Multiple discrimination ............................................................... 21 
Assumed and associated discrimination ....................................... 22 
2.1.3 
2.2  Direct discrimination (Article 2(2)(a)) ......................................................24 
Indirect discrimination (Article 2(2)(b)) ...................................................24 
2.3 
Statistical evidence ................................................................... 26 
2.3.1 
2.4  Harassment (Article 2(3)) ......................................................................27 
2.5 
Instructions to discriminate (Article 2(4)) ................................................30 
2.6  Reasonable accommodation duties (Article 2(2)(b)(ii) and Article 5 Directive 

2000/78) .............................................................................................31 
PERSONAL AND MATERIAL SCOPE ............................................................ 36 
3.1  Personal scope .....................................................................................36 

3.1.1 

EU and non-EU nationals (Recital 13 and Article 3(2), Directive 
2000/43 and Recital 12 and Article 3(2), Directive 2000/78) .......... 36 
3.1.2  Natural and legal persons (Recital 16 Directive 2000/43) ............... 37 
Private and public sector including public bodies (Article 3(1)) ........ 37 
3.1.3 
3.2  Material scope ......................................................................................37 
3.2.1  Conditions for access to employment, to self-employment or to 

3.2.2 

3.2.3 

occupation, including selection criteria, recruitment conditions and 
promotion, whatever the branch of activity and at all levels of the 
professional hierarchy (Article 3(1)(a)) ........................................ 37 
Employment and working conditions, including pay and dismissals 
(Article 3(1)(c)) ........................................................................ 39 
Access to all types and all levels of vocational guidance, vocational 
training, advanced vocational training and retraining, including 
practical work experience (Article 3(1)(b)) ................................... 40 

3.2.4  Membership of, and involvement in, an organisation of workers or 

3.2.5 

employers, or any organisation whose members carry on a particular 
profession, including the benefits provided for by such organisations 
(Article 3(1)(d)) ........................................................................ 40 
Social protection, including social security and healthcare (Article 
3(1)(e) Directive 2000/43) ......................................................... 41 
Social advantages (Article 3(1)(f) Directive 2000/43) .................... 42 
Education (Article 3(1)(g) Directive 2000/43) ............................... 43 
Access to and supply of goods and services that are available to the 
public (Article 3(1)(h) Directive 2000/43) .................................... 51 
3.2.9  Housing (Article 3(1)(h) Directive 2000/43) ................................. 52 
EXCEPTIONS ............................................................................................. 55 
4.1  Genuine and determining occupational requirements (Article 4) ..................55 
4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

3.2.6 
3.2.7 
3.2.8 

2000/78) .............................................................................................55 

4.3  Armed forces and other specific occupations (Article 3(4) and Recitals 18 and 

19, Directive 2000/78) ..........................................................................56 
4.4  Nationality discrimination (Article 3(2)) ...................................................56 
4.5  Health and safety (Article 7(2) Directive 2000/78) ....................................58 
4.6  Exceptions related to discrimination on the ground of age (Article 6 Directive 

2000/78) .............................................................................................59 
4.6.1  Direct discrimination ................................................................. 59 
Special conditions for younger or older workers ............................ 60 
4.6.2 

3 

 
 
Country report - Non-discrimination – Poland – 2021 

4.6.3  Minimum and maximum age requirements ................................... 61 
4.6.4  Retirement ............................................................................... 62 
4.6.5  Redundancy ............................................................................. 67 
4.7  Public security, public order, criminal offences, protection of health, protection 
of the rights and freedoms of others (Article 2(5), Directive 2000/78) .........68 
4.8  Any other exceptions .............................................................................68 
POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 
2000/78) .................................................................................................. 69 
REMEDIES AND ENFORCEMENT ................................................................. 71 
6.1 
Judicial and/or administrative procedures (Article 7 Directive 2000/43, Article 
9 Directive 2000/78) .............................................................................71 

6.2  Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2) 

Directive 2000/78) ................................................................................79 
6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78)..82 
6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) ......83 
6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) .............................................................................................84 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) .................................................................................................. 88 
IMPLEMENTATION ISSUES...................................................................... 102 
8.1  Dissemination of information, dialogue with NGOs and between social partners
 ........................................................................................................ 102 

8.2   Measures to ensure compliance with the principle of equal treatment (Article 

5 

6 

7 

8 

14 Directive 2000/43, Article 16 Directive 2000/78) ................................ 108 
9 
COORDINATION AT NATIONAL LEVEL ..................................................... 110 
10   CURRENT BEST PRACTICES ..................................................................... 112 
11   SENSITIVE OR CONTROVERSIAL ISSUES ................................................ 113 
11.1 Potential breaches of the directives at the national level ........................... 113 
11.2 Other issues of concern ........................................................................ 113 
12  LATEST DEVELOPMENTS IN 2020 ............................................................ 118 
12.1 Legislative amendments ....................................................................... 118 
12.2 Case law ............................................................................................ 118 
ANNEX 1: MAIN TRANSPOSITION AND ANTI-DISCRIMINATION LEGISLATION122 
ANNEX 2: INTERNATIONAL INSTRUMENTS ..................................................... 124 

4 

 
 
 
 
 
EXECUTIVE SUMMARY 

1. Introduction 

Due  to  several  factors,  which  include  the  low  level  of  legal  awareness  in  Polish  society; 
people’s passivity (and sometimes fear) around seeking to uphold their rights; and a lack 
of  systematic  research,  it  is  impossible  to  assess  the  real  scale  of  discrimination  in 
Poland. Research commissioned by the Polish Ombud found that in 2020, 81 % of people 
who  believed  that  they  had  been  discriminated  against  did  not  inform  any  public  body 
(73%  in  2018,  92 %  in  2016  and  81 %  in  2015).1  For  this  reason,  raising  legal 
awareness among the  public would seem to require  systemic activities on a large scale. 
The  Polish  Government  lacks  a  strategic  approach  to  counteracting  discrimination.  The 
first  National  Programme  of  Activities  for  Equal  Treatment,  covering  2013-2016,  has 
ended.  Since  the  parliamentary  elections  in  autumn  2015,  the  activities  of  the 
Government Plenipotentiary for Equal Treatment2  have been very limited; an evaluation 
of  the  previous  programme  has  not  been  completed,  and  work  on  a  new  national 
programme started only in late 2020.3  

Since 2015, the Ombud’s Office, which plays the role of equality body, has faced political 
attacks for its activities targeting discrimination. In fact, the general political environment 
around counteracting discrimination has become hostile.4  

The  concept  of  age  discrimination  (discrimination  that  is  focused  primarily  on  older 
people) has found its place in recent years, and awareness of such discrimination among 
older people is growing. The activities of the Ombud have resulted in more research and 
recommendations. In 2013, the Minister of Labour appointed a Council for Older People’s 
Policy; it prepared guidelines for long-term policy on older people for 2014-2020, which 
were  adopted  by  the  Council  of  Ministers.  In  October  2018,  the  Council  of  Ministers 
adopted  the  document  Social  Policy  for  Older  People  2030  –  safety,  participation, 
solidarity.  However,  as  underlined  by  the  Ombud,  no  concrete  measures  have  been 
proposed in the area of combating discrimination. 

Discrimination against people with disabilities (12.2 % of the population) has traditionally 
been  tackled  in  numerous  ways.  Poland  ratified  the  UN  Convention  on  the  Rights  of 
Persons with Disabilities (UNCRPD) in 2012, without the optional protocol on the right of 
individual  petition.  People  with  disabilities  are  still  largely  invisible  in  public,  due  to  a 
variety  of  barriers.  Many  problems  are  faced  by  pupils  in  access  to  and  reasonable 
accommodation in education.  

LGBTI  minorities  are  in  a  very  difficult  position  in  Poland,  since  they  are  a  frequently 
attacked  group.  Homophobic  speech  is  still  present,  not  least  in  comments  from 
politicians. In the last few years, both censorship and homophobic speech have increased 
markedly.  This  has  been  manifested  in,  inter  alia,  anti-LGBT  rhetoric  during  the 
presidential  election  in  2020;  bans  on  equality  parades;  and  more  than  50  local 
government  resolutions  to  create  ‘zones  free  from  LGBT  ideology’  (the  EU  has 
acknowledged and taken action to counteract these developments).   

In general, national and religious minorities are small in Poland (1.46 % of the population 
declare  that  they  are  members  of  a  national/ethnic  minority).  There  are  around  200 

1   Ombud, research commissioned from Kantar Public on ‘Legal awareness in the context of equal treatment’, 

Kantar 2020, 2018, 2016, 2015. 

2   Government Plenipotentiary for Equal Treatment - Pełnomocnik Rządu do Spraw Równego Traktowania. 
3   Government Plenipotentiary for Equal Treatment, Krajowy Program Działań na rzecz Równego Traktowania 
na lata 2013-2016 (National Programme of Activities for Equal Treatment for 2013-2016), available at: 
https://www.un.org/development/desa/disabilities/wp-content/uploads/sites/15/2019/11/Poland_National-
Action-Program-for-Equal-Treatment-2013-2016.pdf.  

4   The Ombud’s term of office ended in July 2020, but as of the cut-off date of this report, no new Ombud had 

been appointed. The previous Ombud therefore continued his service.  

5 

 
 
 
 
 
  
 
 
 
minority  churches  and  denominations;  the  biggest  are  Orthodox,  Protestant  and 
Jehovah’s  Witnesses.  ‘Traditional’  national  and  ethnic  minorities  as  well  as  religious 
minorities are supported by various positive action programmes aimed at cultivating their 
culture, heritage and language. There are also special support programmes for the Roma 
population.5  However,  hate  speech  and  hate  violence  and  crime  targeted  at  people  of 
different ethnic and religious backgrounds (including immigrants and refugees, especially 
Muslims)  has  escalated  in  recent  years:  the  Ombud  registered  60  such  cases  in  2016, 
100 in 2017, 90 in 2018, 100 in 2019 and 90 in 2020. 

2. Main legislation 

According to the general anti-discrimination clause in the Polish Constitution (Article 32),6 
all people are  equal before the law and have the  right to  equal treatment by the public 
authorities, and no  one may be discriminated  against in political, social or  economic life 
for any reason whatsoever. This principle does not specify criteria for prohibited forms of 
discrimination. 

By 2010, Poland had transposed the equality directives, mainly in the employment field. 
Existing  gaps,  which  had  resulted  in  some  referrals  to  the  Court  of  Justice  of  the 
European Union (CJEU), mobilised the Polish Government to finally adopt the Act on the 
Implementation  of  Certain  Provisions  of  the  European  Union  in  the  Field  of  Equal 
Treatment (Equal Treatment Act – ETA), which entered into force on 1 January 2011.7 

Until  2010,  the  Act  on  the  Labour  Code  was  the  main  element  in  Polish  anti-
discrimination  legislation  (it  was  amended  in  2004  and  2008  in  order  to  transpose  the 
directives).8  The  Labour  Code  regulates  employment  under  labour  contracts  and  lists 
several grounds of discrimination, but only as examples; the list remains open.  
In  contrast  to  the  Labour  Code,  the  ETA  contains  an  exhaustive  list  of  grounds  of 
discrimination:  gender,  race,  ethnic  origin,  nationality  (citizenship  was  added  in  2016), 
religion,  belief,  political  opinion,  disability,  age  and  sexual  orientation.  In  addition  to 
broad protection from discrimination in the employment field (extended to civil contracts, 
self-employment  and  independent  professions),  the  law  provides  protection  from 
discrimination in all fields outside employment, but only in relation to race, ethnic origin 
and nationality (it also covers gender, but only in access to social protection, goods and 
services, including housing, and not in healthcare and education). The Act designated the 
Ombud’s Office as the equality body.  

In order to implement the equality directives, the Code of Civil Procedure was amended 
in 2004.9 It gives legal standing to civil society organisations (CSOs), which may institute 
actions on behalf of claimants and join the proceedings at any stage thereof. 

Generally  speaking,  the  law  is  enforced,  especially  in  respect  of  labour  relations. 
However,  outside  the  field  of  employment  the  process  is  rather  slow.  In  fact,  claims 
under the ETA are made only occasionally. 

5   Ministry of Internal Affairs and Administration (2014), Programme for the Integration of the Roma 

Community in Poland 2014-2020 (Program integracji społeczności romskiej w Polsce na lata 2014-2020), 
available in English at: http://mniejszosci.narodowe.mswia.gov.pl/mne/romowie/program-integracji-spol.  
6   Constitution of the Republic of Poland (Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r.), 2 
April 1997, available at: http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-
republic-of-poland/.  

7   Act on the Implementation of Certain Provisions of the European Union in the Field of Equal Treatment 

(referred to as the Equal Treatment Act – ETA) (Ustawa z dnia 3 grudnia 2010 r. o wdrożeniu niektórych 
przepisów Unii Europejskiej w zakresie równego traktowania), 3 December 2010. 

8   Act on the Labour Code (referred to as the Labour Code) (Ustawa z dnia 26 czerwca 1974 r. Kodeks pracy), 

26 June 1974. 

9   Act on the Code of Civil Procedure (referred to as the Code of Civil Procedure) (Ustawa z dnia 17 listopada 

1964 r. Kodeks postępowania cywilnego), 17 November 1964. 

6 

 
 
 
 
 
 
 
 
 
3. Main principles and definitions 

The  ETA  introduced  several  legal  definitions  which  were  previously  included  only  in  the 
Labour  Code  and  related  only  to  the  employment  field  (currently,  definitions  in  the 
Labour Code are also binding, but sometimes they are slightly different from those in the 
ETA).  

Direct  discrimination  takes  place  when  a  natural  person,  because  of  their  gender,  race, 
ethnic  origin,  nationality,  religion,  belief,  political  opinion,  disability,  age  or  sexual 
orientation, is treated less favourably than another is, has been or would be treated in a 
comparable  situation.  Indirect  discrimination  is  defined  as  a  situation  in  which  an 
unfavourable  difference  or  particular  disadvantage  occurs  or  could  occur  for  a  person 
because of their gender, race, ethnic origin, nationality, religion, belief, political opinion, 
disability,  age  or  sexual  orientation,  due  to  an  apparently  neutral  provision,  criterion 
used or practice/action undertaken, unless that decision, criterion or action is objectively 
justified  by  a  legitimate  aim  and  the  means  of  achieving  that  aim  are  appropriate  and 
necessary.  

Harassment  is  defined  as  any  unwanted  conduct  with  the  purpose  or  effect  of  violating 
the  dignity  of  a  natural  person  and  of  creating  an  intimidating,  hostile,  degrading, 
humiliating  or  offensive  environment.  The  ETA  prohibits,  and  considers  as  unequal 
treatment, the less favourable treatment of persons caused by rejection of or submission 
to  harassment.  The  ETA  prohibits 
through 
incitement/encouragement  and  orders  to  discriminate.  It  also  introduces  a  general 
prohibition  on  victimisation  and  provides  that  the  exercise  of  their  rights  by  persons  in 
order to defend themselves against unequal treatment must not be the basis for adverse 
treatment  and  must  not  result  in  any  negative  consequences  for  those  persons.  This 
protection extends to persons who in any way support other persons  in exercising their 
rights.  

to  discriminate,  both 

instruction 

The  ETA  implemented  the  duty  to  provide  reasonable  accommodation,  stating  that  an 
employer  is  obliged  to  provide  the  necessary  reasonable  accommodation  for  a  disabled 
person who is in an employment relationship with them; participating in the recruitment 
process;  or  undergoing  vocational  or  professional  training,  apprenticeship  or  practice. 
‘Necessary  reasonable  accommodation’  means  introducing  necessary  changes  and 
adjustments  in  a  particular  case  in  line  with  specific  needs  reported  to  the  employer 
stemming  from  somebody’s  disability,  unless  the  introduction  of  such  changes  or 
adjustments would impose a disproportionate burden on the employer. The burden is not 
disproportionate  when  it  is  sufficiently  remedied  by  public  funds.  Controversial  changes 
were  introduced  in  the  school  year  beginning  in  September  2017.  The  Ministry  of 
National  Education  claims  to  support  integration  and  mainstream  schools.  However, 
according  to  the  amended  regulations,  individual  teaching  provision  that  is  required 
because  of  special  needs  may  be  organised  at  home,  not  in  school.  Some  schools  are 
using  this  opportunity  to  neglect  their  responsibilities.  Both  the  Ombud  and  the  Ombud 
for Children’s Rights are monitoring the situation.  

The  ETA  extends  protection  for  legal  persons  on  the  grounds  of  the  race,  ethnic  origin 
and  nationality  of  members.  All  forms  of  discrimination  are  prohibited,  and  the  right  to 
compensation also extends to legal persons.  

Multiple discrimination, assumed and associated discrimination are not regulated and are 
still new concepts. They were included in the draft laws that were prepared in 2012 and 
2013 with the aim of amending the ETA, but those laws were never passed. In 2014 (and 

7 

 
 
 
 
 
  
 
in  a  final  second-instance  verdict  delivered  in  2015)  associated  discrimination  was 
recognised by a court for the first time.10 

The  ETA  introduced  an  exception  regarding  genuine  and  determining  occupational 
requirements.  The  exception  covers  ‘opportunities  and  conditions  for  undertaking  and 
conducting occupational activities as well as training (including higher education)’. A test 
for  the  proportionality  of  measures  and  the  legitimate  aim  was  also  introduced.  Other 
exceptions  provided  in  the  directives  are  mirrored  in  the  ETA  –  in  fact,  the  relevant 
provisions  have  been  translated  almost  verbatim  from  the  directives.  They  refer  to 
employers  with  an  ethos  based  on  religion  or  belief,  as  well  as  to  discrimination  on  the 
ground of age. The ETA also states expressis verbis that it does not cover the spheres of 
private  and  family  life  and  legal  actions  related  to  these  spheres,  nor  does  it  cover 
freedom  of  contract  as  long  as  it  is  not  based  on  the  grounds  of  gender,  race,  ethnic 
origin or nationality.  

4. Material scope 

According to the Labour Code, in the field of employment any discrimination is forbidden, 
in  particular  with  regard  to  the  conclusion  and  termination  of  an  employment 
relationship; the terms of employment and promotion; and access to vocational training 
aimed  at  upgrading  professional  qualifications.  The  prohibition  on  discrimination  also 
applies  to  all  the  institutions  operating  in  the  labour  market,  such  as  employment 
agencies  and  employment  advice  services  as  well  as  training  courses  for  the 
unemployed.  The  rules  apply  equally  to  the  public  and  private  sectors.  Since  the 
enactment  of  the  ETA  in  2010,  the  prohibition  on  discrimination  has  been  extended  to 
cover  civil  contracts,  self-employment  and  the  self-regulating  professions  (such  as 
advocates and legal advisors). 

The ETA prohibits discrimination in the membership of, and involvement in, trade unions, 
organisations  of  employers,  or  any  organisation  whose  members  carry  on  a  particular 
profession,  including  the  benefits  provided  for  members  of  such  organisations  (all 
grounds  are  covered).  Until  2010,  the  directives  were  not  transposed  in  any  other  field 
outside  employment;  the  2010  ETA  widened  the  scope  of  protection  to  cover  the  fields 
included in the directives.  

The  ETA  prohibits  discrimination  in  social  protection  on  the  grounds  of  gender,  race, 
ethnic origin or nationality and discrimination in relation to healthcare on the grounds of 
race,  ethnic  origin  and  nationality.  The  ETA  does  not  use  the  term  ‘social  advantages’, 
but the definition of ‘social protection’ (not a legal definition, but a definition elaborated 
by legal scholars) traditionally covers it. There is also the anti-discrimination clause in the 
Act on the Social Security System (Social Security Act), which is the basic statute for the 
social  security  sphere.  Prior  to  2010,  this  provision  limited  the  principle  of  equal 
treatment for all socially insured people to the grounds of sex, marital status and family 
status,  but  from  2011  it  was  extended  to  cover  the  grounds  of  race,  ethnic  origin  and 
nationality.  The  Capital-based  Pensions  Act,  which  was  amended  by  the  ETA,  prohibits 
discrimination in calculating pension levels on the grounds of gender, race, ethnic origin, 
nationality, state of health, family and marital status.  The ETA expressis verbis prohibits 
discrimination in education and higher education, but only on the grounds of race, ethnic 
origin  and  nationality.  Similarly,  the  Act  expressis  verbis  prohibits  discrimination  in 
access to goods and services, including housing, goods and purchasing rights and energy 
if  they  are  offered  to  the  public,  on  the  grounds  of  sex,  race,  ethnic  origin  and 
nationality.  

10   Warsaw Śródmieście District Court, judgment of 9 July 2014, XY and Polish Society of Antidiscrimination 

Law on behalf of XY v. Company Z, No. VI C 402/13; Warsaw Regional Court (second instance), judgment 
of 18 November 2015, No. V Ca 3611/14. 

8 

 
 
 
 
 
 
 
 
5. Enforcing the law 

The ETA introduced a general compensation claim stating that anyone (natural and legal 
persons) who suffers as a result of an infringement of the principle of equal treatment is 
entitled to compensation (Article 13). However, instances of such cases being brought to 
the courts have been rare. One of the reasons for that, as pointed out by the Ombud in 
its annual reports, is the fact that the ETA refers to compensation (odszkodowanie) which 
covers only material (and not non-material) damage and therefore limits the scope of the 
protection.  The  provision  for  compensation  claims  under  the  ETA  should  be  widened  to 
include  non-material  damages  as  well.  However,  in  a  recent  case,  a  district  court 
awarded  compensation  under  the  ETA,  arguing  that  the  Act  also  covers  non-material 
damage – in the specified case, damage to the dignity of the party.11 

On  the  other  hand,  recourse  may  be  made  to  general  civil  provisions.  The  Civil  Code 
provides for compensation claims for material and non-material damages, but there is no 
shift of the burden of proof in general civil procedure. In addition, in matters not covered 
by the ETA, one can use the protection of ‘personal rights’ such as health, freedom and 
honour (Articles 23  and 24  of the Civil  Code).12  An individual whose personal  rights are 
endangered  by  another’s  actions  can:  demand  that  the  action  cease,  unless  it  is  not 
unlawful;  demand  that  the  effects  of  the  violation  be  rectified  (in  particular,  that  a 
statement of appropriate content and form be made); and demand pecuniary satisfaction 
or  payment  of  an  appropriate  sum  to  a  designated  social  cause.  If  the  infringement  of 
personal rights results in material damage, the victim may demand reinstatement under 
general  law  terms.  These  provisions  on  personal  rights  have  become  a  more  popular 
basis for discrimination claims than the ETA, which is in fact the dedicated Act.  

Claims  arising  from  an  employment  relationship  can  be  determined  either  by  a  labour 
court  or  by  a  conciliation  committee.  The  special  employment  claim  for  compensation 
was introduced into the Labour Code in 2004. Anyone who suffers from an infringement 
of the principle of equality in employment is entitled to start judicial proceedings and to 
seek compensation at a level that is no lower than the minimum monthly salary. 

There  are  no  administrative  remedies  laid  down  specifically  to  deal  with  discrimination 
issues.  However,  the  ETA  introduced  a  new  possibility  into  administrative  procedure, 
stating  that,  if  a  court  rules  that  there  has  been  an  infringement  of  the  rule  of  equal 
treatment  and  that  this  infringement  influenced  the  final  administrative  decision,  an 
administrative retrial may be demanded. 

In  respect  of  non-judicial  measures,  a  complaint  to  the  Ombud  may  prove  to  be  an 
effective tool. 

In  principle,  legal  representation  may  be  provided  by  an  advocate  or  legal  adviser.  In 
labour cases, a representative of a trade union, a labour inspector or another employee 
of the enterprise may also act as the legal representative of an employee. Furthermore, 
civil  society  organisations  whose  official  objectives  include  equality  protection  and 
counteracting  discrimination  may  institute  actions  on  behalf  of  citizens  and  join 
proceedings.  CSOs  are  also  entitled  to  institute  or  join  administrative  proceedings,  and 
their  representatives  may  be  admitted  to  criminal  proceedings.  In  practice,  part  of  the 
discrimination cases outside the field of employment are brought on behalf of victims (or 
joined)  by  CSOs  such  as  the  Polish  Society  of  Anti-Discrimination  Law  or  the  Helsinki 
Foundation for Human Rights. 

11   Toruń Regional Court, judgment of 21 August 2020, No. VIII Ca 1058/19. See more information in section 

3.2.7 and 12.2 of this report.  

12   Act on the Civil Code (referred to as the Civil Code) (Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny), 23 

April 1964. 

9 

 
 
 
 
 
 
 
 
 
In  Polish  anti-discrimination  law,  there  is  no  explicit  mention  of  the  use  of  statistical 
evidence or situation testing. This does not mean that their use is theoretically excluded 
(both  concepts  are  discussed  by  CSOs  and  in  judicial  circles),  and  it  can  be  presumed 
that this kind of evidence could be admitted by a court. However, with regard to situation 
testing, this is not obviously the case and such a strategy would be risky; there are also 
theoretical arguments against accepting such evidence. So far, people who have brought 
cases that are in fact based on situation testing have not admitted this in court; rather, 
they have argued that they were simply discriminated against. 

Since the amendment of the Labour Code in 2004, the burden of proof has shifted from 
the  complainant  to  the  respondent,  but  only  in  employment  cases.  The  2010  ETA 
introduced  a  shift  of  the  burden  of  proof  in  all  compensation  proceedings  relating  to 
infringement  of  the  principle  of  equal  treatment  governed  by  the  Act;  it  does  not 
therefore extend to claims based on civil law (with the exception of ‘personal rights’,  for 
which there is an autonomous mechanism for shifting the burden of proof). According to 
the  Labour  Code  and  the  ETA,  the  complainant  must  substantiate  the  probability  of  a 
violation  (it  sometimes  happens  that  courts  also  expect  a  particular  ground  of 
discrimination to be demonstrated),13 and the respondent is obliged to show that they did 
not commit the violation. 

Under Polish anti-discrimination law, there is no specific system of sanctions (apart from 
compensation  under  the  Civil  Code  and  Labour  Code  described  above);  there  are  only 
penalties and punishments set out by the Penal Code and the Code of Petty  Crimes. On 
the basis of the Civil Code and the Labour Code, it is possible to claim compensation for 
material and non-material damages.  

Positive action and special programmes are traditionally targeted at national and religious 
minorities (such as special subsidies for minority schools); the Roma community (special 
programmes  since  2003  covering  education,  healthcare  and  housing);  and  people  with 
disabilities (in education and employment). Some actions have been also undertaken for 
senior citizens. 

The Ombud’s Office is  generally open to  collaboration with CSOs and social partners.  In 
the case  of the Government Plenipotentiary for Equal Treatment, such possibilities have 
in fact come to an end since the Office no longer really engages with equality issues.  

6. Equality bodies 

Until  2010,  no  institution  was  designated  as  the  specialised  body.  The  2010  ETA 
designated  the  Ombud’s  Office  as  the  equality  body.  The  Act  granted  the  Ombud  new 
competences (in addition to its human rights mandate). No grounds of discrimination are 
listed in the Ombud’s  mandate and it  can therefore deal with any ground, including but 
not  limited  to  those  listed  in  the  ETA.14  In  2015,  a  new  Equal  Treatment  Department 
(Zespół  do  spraw  Równego  Traktowania)  was  created  (with  sections  for  anti-
discrimination law and the rights of migrants and national minorities). The Ombud is also 
engaged in research activities as well as the compilation of existing data on some issues. 
It  has  also  launched  a  section  of  its  website  dedicated  to  equality  issues;  collected 
information  on  jurisprudence  relating  to  discrimination;  established  thematic  teams  of 
external  experts  to  support  the  Ombud;  and  set  up  a  telephone  hotline  to  deal  with  all 
cases, including discrimination cases. 

The  ETA  provides  that,  in  implementing  the  principle  of  equal  treatment,  the  Ombud 
should:  analyse,  monitor  and  support  the  equal  treatment  of  everyone;  conduct 

13   See, for instance, the following Supreme Court verdicts: judgment of 10 May 2018, No. I PK 54/17; 
judgment of 3 June 2014, No. III PK 126/13; and judgment of 18 April 2012, No. II PK 196/11. 

14   Act on the Commissioner for Human Rights (Ustawa z 15 lipca 1987 r. o Rzeczniku Praw Obywatelskich), 15 

July 1987. 

10 

 
 
 
 
 
 
 
 
 
independent  surveys  on  discrimination;  prepare  and  publish  independent  reports;  and 
issue recommendations regarding discrimination issues. 

The  problem  of  providing  independent  assistance  to  victims  is  more  complicated  since, 
according  to  the  Polish  Constitution  and  the  ETA,  these  competences  refer  to  a  vertical 
understanding of human rights (the relation between a public authority and an individual) 
and  are  limited  when  it  comes  to  conflicts  between  private  parties.  In  such  cases, 
according  to  the  law,  the  Ombud  should  limit  its  actions  to  providing  the  victim  with 
information on rights and possible actions. The Ombud is not a quasi-judicial body.  

The  second  institution  that  has  a  mandate  to  promote  the  equal  treatment  of  everyone 
without  discrimination  based  on  racial  or  ethnic  origin  (among  other  grounds)  is  the 
Government  Plenipotentiary  for  Equal  Treatment.  This  post  was  created  in  April  2008 
within the Chancellery of the Prime Minister (the 2010 ETA provided a new legal basis for 
its  operation).15  The  Plenipotentiary’s  main  task  is  to  execute  Government  policy  in  the 
field  of  equal  treatment.  In  2016,  the  office  of  the  Plenipotentiary  was  closed;  its  staff 
was  reduced  and  is  now  responsible  for  a  variety  of  other  issues;  and  a  new 
Plenipotentiary  was  appointed  to  combine  two  positions  –  the  newly  created  position  of 
Government  Plenipotentiary 
(Pełnomocnik  Rządu  do  spraw 
Społeczeństwa  Obywatelskiego)  together  with  that  of  the  Plenipotentiary  for  Equal 
Treatment. Since then, equal treatment issues have become much less important in the 
activities  of  the  Plenipotentiary.  In  February  2020,  the  office  of  the  Plenipotentiary  for 
Equal  Treatment  was  again  separated  and  moved  to  the  Ministry  of  Family  and  Social 
Policy  (and  on  5  March  2020,  the  deputy  minister  was  appointed  to  the  function  of  the 
Plenipotentiary for Equal Treatment).16  

for  Civil  Society 

As far as the rights of national and ethnic minorities are concerned, the Act on National 
and Ethnic Minorities and on Regional Languages of 200517 created a Joint Committee of 
the Government and National and Ethnic Minorities. It is composed of representatives of 
selected  ministries  and  minorities,  and  its  remit  includes  issuing  opinions  regarding  the 
rights and needs of minorities; programmes and draft laws in the field; and the principles 
of  allocation  and  levels  of  resources  from  the  state  budget  directed  at  preserving  the 
cultural identity of minorities. It is also tasked with taking action in the field of combating 
discrimination.  In  2008,  the  Roma  Issues  Team  was  created  within  the  Committee.  In 
2013,  the  then  Prime  Minister  created  the  Council  for  the  Prevention  of  Racial 
Discrimination,  Xenophobia  and  Related  Intolerance.  However,  in  April  2016,  the 
subsequent Prime Minister issued a regulation abolishing the Council.  

The body responsible for disability policy is the Government Plenipotentiary for Disabled 
People. The Plenipotentiary, formally a part of the Ministry of Family and Social Policy, is 
primarily responsible for implementing the Act on the Vocational and Social Rehabilitation 
and Employment of Disabled Persons (Disabled Persons Act).18 

15   Regulation of the Council of Ministers regarding the Government Plenipotentiary for Equal Treatment 
(Rozporządzenie Rady Ministrów z dnia 22 kwietnia 2008 r. w sprawie Pełnomocnika Rządu do spraw 
Równego Traktowania), 22 April 2008. 

16   Therefore, contrary to recommendations (e.g. in CERD (2019), Concluding observations on the combined 
twenty-second to twenty-fourth periodic reports of Poland), the position of the Plenipotentiary has been 
additionally weakened. See Law of 23 January 2020 amending the Act on Government Administration 
Departments and some other acts (ustawa z 23 stycznia 2020 r. o zmianie ustawy o działach administracji 
rządowej oraz niektórych innych ustaw) (Dz.U. z 2020, poz. 284), Article 70. See also: 
https://www.gov.pl/web/rodzina/anna-schmidt-rodziewicz-nowym-wiceministrem-rodziny-pracy-i-polityki-
spolecznej.  

17   Act on National and Ethnic Minorities and on Regional Languages (Ustawa z dnia 6 stycznia 2005 r. o 

mniejszościach narodowych i etnicznych oraz o języku regionalnym), 6 January 2005. 

18   Act on the Vocational and Social Rehabilitation and Employment of Disabled Persons (Disabled Persons Act) 

(Ustawa z dnia 27 sierpnia 1997 r. o rehabilitacji zawodowej i społecznej oraz zatrudnianiu osób 
niepełnosprawnych), 27 August 1997. 

11 

 
 
 
 
 
 
 
 
7. Key issues 

A  significant  problem  is  the  fact  that  the  ETA  is  under-used.  There  are  limited  statistics 
on  the  number  of  discrimination-related  cases  that  have  been  brought  to  justice  (and 
those  which  do  exist  are  erroneous  and  not  wholly  reliable).  However,  the  little  that  is 
known  shows  clearly  that  victims  of  discrimination  rarely  use  the  ETA,  with  only  a  few 
cases  being  brought  over  the  course  of  10  years  (the  first  final  decision  was  not  issued 
until  November  2015).  In  addition,  the  number  of  cases  involving  discrimination  in 
employment and based on the Labour Code is relatively low (50-100 cases a year).19  

One  of  the  reasons  for  the  small  number  of  cases  is  generally  the  problem  of  under-
reporting.  Surveys  commissioned  by  the  Ombud  show  that  a  large  number  of  people 
(73 % in 2018 and 81 % in 2020) who believed that they had been discriminated against 
during the previous year did not report this to any public institution.20  

In  2020,  the  Ombud  summed  up  10  years  of  the  ETA.21  Among  the  successes,  the 
Ombud mentioned: introducing the topic of discrimination into mainstream public debate 
and  changing  social  awareness  of  this  phenomenon,  thanks  also  to  research  that  was 
conducted;  clarification  of  the  standard  of  legal  protection  in  the  course  of  court 
proceedings;  and  adoption  and  implementation  of  Government  programmes  aimed  at 
more  complete  observance  of  the  principle  of  equal  treatment.  At  the  same  time,  the 
Ombud  emphasised  that  the  same  issues  still  remained  as  challenges  for  the  future: 
discrimination continues to be misunderstood, leading to further perpetuation of negative 
stereotypes  about  various  social  groups,  which  thus  weakens  them;  legal  regulations 
raise  questions  of  interpretation  and  contain  gaps,  and  are  therefore  insufficient  to 
provide  real  support  to  all  people  experiencing  discrimination;  and  incomplete  legal 
instruments and limited objectives of the implemented public policies make it impossible 
to achieve real equality. 

The changes that began to take place in 2016 with regard to limiting the practical role of 
the  office  of  the  Government  Plenipotentiary  for  Equal  Treatment,  and  other 
developments,  including  restrictions  on  the  budget  of  the  Ombud  and  political  attacks 
provoked  by  its  anti-discrimination  activities,  all  show  that  equal  treatment  is  not  a 
priority for the current Government.  

The Ombud, in its annual report for 2019,22 underlined the following challenges:  

-  

-  

-  

Due  to  the  shortcomings  of  the  ETA,  the  practical  effect  of  the  ETA  is  negligible 
because  of  the  limited  application  of  the  instrument  in  practise.  This  undermines 
the effectiveness of the implementation of EU directives. 
An  additional  problem  is  the  unreliable  system  of  collecting  data  on  cases  of 
violation  of  the  principle  of  equal  treatment  pending  before  common  courts.  The 
data available to the Ministry of Justice is subject to numerous errors. This hinders 
reliable monitoring of the application of the ETA. 
Limited  legal  protection  against  discrimination  in  access  to  services  as  a  result  of 
the  judgment  of  the  Constitutional  Tribunal,  which  repealed  the  provision  in  the 
Code  of  Petty  Offences  (138)  penalising  the  refusal  to  provide  a  service.23 
Removing  this  provision  carries  negative  consequences  for  the  implementation  of 

19  See more detailed information in Section 6.1.c below.  
20  Ombud, research commissioned from Kantar Public on legal awareness in the context of equal treatment, 

Kantar Public, 2018, 2020.  

21   See ‘Ochrona przed dyskryminacją w Polsce. Stan prawny i świadomość społeczna. Wnioski i rekomendacje 

RPO’ (‘Protection against discrimination in Poland: legal status and social awareness. Conclusions and 
recommendations of the Ombud’), Equal Treatment Principle: Law and Practice, No. 30, 2020, pp. 4-5. 
Hereafter referred to as ‘Protection against discrimination in Poland’ (2020).  

22   See Ombud, annual report for 2019.  
23   Constitutional Tribunal (Trybunał Konstytucyjny), judgment of 26 June 2019, No. K 16/17; see more at: 

http://trybunal.gov.pl/s/k-1617.  

12 

 
 
 
 
 
 
 
 
the principle of equal treatment – in terms of both the significant limitation of legal 
protection  and  the  social  significance  of  this  change.  As  of  4  July  2019,  when  the 
provision lost its power, there  has been a real threat  of segregation  in the service 
market. There were comments in the public space that the CT judgment confirmed 
the  existence  of  the  so-called  universal  ‘conscience  clause’,  i.e.  the  view  that  the 
service provider may freely choose the clients whom he serves. 
The  Ombud  noted  that  he  encounters  ‘a  significant  number  of  cases  initiated  by 
citizens  experiencing  discrimination  by  private  entities,  in  particular  in  the  area  of 
access  to  services.  Therefore,  it  seems  that  in  order  to  fully  implement  the 
European  standards  of  operation  of equal treatment bodies, it  would be  necessary 
to  enable  the  equal  treatment  body  to  take  direct  intervention  in  cases  involving 
violations by entities other than state authorities’.24  

-  

Finally,  the  so-called  ‘rule-of-law  backsliding’  crisis  should  be  mentioned.  Although  the 
Polish  Government  calls  it  a  necessary  judicial  reform,  it  is  being  characterised  by  the 
international community and by academia as a crisis or even a constitutional coup d’état. 
The main part of it refers to the independence of the judiciary, and it is therefore likely to 
impact on the effectiveness of the fight against discrimination.  

24   Ombud, annual report for 2019, p. 26.  

13 

 
 
 
 
INTRODUCTION 

The national legal system 

Legislative power in Poland is centralised. The  basic law is the 1997  Constitution. Other 
sources  of  universally  binding  law  include  acts/statutes  of  Parliament  (ustawy);  ratified 
international  agreements  that  become  part  of  domestic  law  after  ratification;25  and 
ordinances/regulations  (rozporządzenia)  issued  by  a  Minister  or  by  the  Council  of 
Ministers. Legislative power is exercised jointly  by the  House  of  Deputies,  known as the 
Sejm,  and  the  Senate,  which  are  the  two  houses  of  Parliament.  In  order  for  a  piece  of 
legislation  to  be  adopted,  both  houses  must  consent  and  the  President  –  who  is 
empowered  to  employ  the  right  of  veto  (which  may  be  rejected  in  Parliament)  –  must 
sign it. The act must then be promulgated in the Journal of Laws.  

List of main legislation transposing and implementing the directives 

Act  on  the  Implementation  of  Certain  Provisions  of  the  European  Union  in  the  Field  of 
Equal Treatment26 
Date of adoption: 3 December 2010 
Protected  grounds:  gender,  race,  ethnic  origin,  nationality,  citizenship,27  religion,  belief, 
political opinion, disability, age and sexual orientation 
Material  scope:  full  scope  as  covered  by  Directives  2000/43/EC  and  2000/78/EC: 
employment  (all  grounds),  selected  grounds  protected  in  access  to  goods  and  services 
(including housing), social protection, social advantages, education 

Act on the Labour Code28 (implementation amendment) 
Date of adoption: 14 November 2003 
Protected  grounds:  gender,  age,  disability,  race,  religion,  nationality,  political  opinion, 
membership of a trade union, ethnic origin, belief, sexual orientation, employment for a 
definite  or indefinite period  of time,  employment part-time  or full-time; the list  remains 
open 
Material scope: Employment 

Act on the Commissioner for Human Rights29 (implementation amendment) 
Date of adoption: 3 December 2010 
Protected grounds: no grounds mentioned  
Material scope: full scope (but between natural persons and the state/public institutions, 
not between private parties) 

25   For instance, the UN Convention on the Rights of Persons with Disabilities (UNCRPD), after ratification 

(September 2012) and publication in the Journal of Laws (October 2012), became part of binding domestic 
law. 

26   Equal Treatment Act, 3 December 2010. 
27   Protection is limited to certain categories of persons, and discrimination on the grounds of citizenship as 

such is not prohibited in the ETA; see more in Section 2.1.  

28   Labour Code, 26 June 1974.  
29   Act on the Commissioner for Human Rights, 15 July 1987. 

14 

 
 
 
 
 
 
 
 
 
1 

GENERAL LEGAL FRAMEWORK  

Constitutional  provisions  on  protection  against  discrimination  and  the 
promotion of equality  

The Polish Constitution (of 1997, before implementation of the anti-discrimination law in 
Poland) includes the following general Article dealing with non-discrimination.  

Article 32: ‘(1) All persons shall be equal before the law. All persons shall have the right 
to equal treatment by the public authorities. (2) No-one shall be discriminated against in 
political, social or economic life for any reason whatsoever.’ 

This provision applies to all areas covered by the directives. Its material scope is broader 
than that of the directives. 

‘This means that the creators of the Constitution gave the principle of equality a universal 
dimension,  referring  to  all  forms  of  distinction  which  may  arise  in  political,  social  or 
economic life, regardless of the characteristic (criterion) according to which a distinction 
may occur’.30 

This  provision  is  directly  applicable.  The  Constitution  stipulates  that  its  provisions  are 
directly applicable unless the Constitution itself states otherwise.31 Thus the presumption 
is  in  favour  of  the  direct  applicability  of  constitutional  provisions.  However,  to  a 
significant  extent,  this  remains  theoretical.  It  is  not  easy  to  put  the  concept  of  direct 
applicability into operation before a court, because in judicial proceedings it is necessary 
to  use  the  existing  legal  and  procedural  framework  and  adapt  the  constitutional 
argument  to  it.  In  Poland,  there  is  little  precedent  for  invoking  constitutional  provisions 
directly, and the courts are not used to doing  so.  The issue  of direct applicability of the 
Constitution  became  a  subject  of  interest  and  debate  in  the  years  2016–2020  due  to 
political  developments  regarding  the  role  of  the  Constitutional  Tribunal  (CT).  From  late 
2015,  the  CT  became  the  target  of  political  attack,  and  its  role  has  been  significantly 
reduced. Many experts are of the opinion that because of the de facto limited role of the 
Constitutional  Tribunal,  the  ordinary  courts  should  directly  apply  the  Constitution  more 
often.32  

There also exists a  special procedure described in Article 193 of the  Constitution, which 
reads:  ‘Any  court  may  refer  a  question  of  law  to  the  Constitutional  Tribunal  as  to  the 
conformity of a normative act with the Constitution, ratified international agreements or 
statutes, if the answer to such a question of law will determine an issue currently before 
such  a  court.’  Polish  judges  used  this  possibility  when  they  faced  the  problem  of  the 
constitutionality  of  a  law  being  the  legal  basis  for  the  verdict  in  a  particular  case. 
However, due to the constitutional crisis in Poland and the current situation with the CT 
(which  is  not  accepted  by  many  judges,  who  consider  it  to  have  been  taken  over 

30   Constitutional Tribunal, judgment of December 1997, No. K. 8/9716.  
31   Constitution of the Republic of Poland, 2 April 1997, Article 8(2), available at: 

http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-republic-of-poland/. 
32   See articles on the blog, available at: http://verfassungsblog.de/tag/polish-constitutional-tribunal/. In 

particular, see Grzelak, A., ‘Sententia non existens – the future of jurisprudence of the Polish Constitutional 
Tribunal?’, 17 March 2017, available at: http://verfassungsblog.de/sententia-non-existens-the-future-of-
jurisprudence-of-the-polish-constitutional-tribunal/. See also Matczak, M. (2018), Poland: From Paradigm to 
Pariah? Polish Constitutional crisis – facts and interpretations, Oxford, available at: 
http://www.fljs.org/content/prominent-critic-law-and-justice-party-denounces-“assault-rule-law-poland”-
“out-political; and Pietrzak, M. (2017), The Constitutional Court of Poland: The Battle for Judicial 
Independence, available at: 
http://www.fljs.org/sites/www.fljs.org/files/publications/The%20Constitutional%20Court%20of%20Poland.p
df. 

15 

 
 
 
 
 
 
 
 
 
politically  and  to  be  neither  independent  nor  impartial)  the  number  of  questions 
submitted has dropped.33  

In  principle,  these  provisions  can  be  enforced  against  the  state  and  private  individuals, 
but any legal action should have a specific legal basis. 

In  addition  to  the  general  clause,  the  Constitution  includes  the  following  relevant 
provisions: 

- 

- 
- 

- 

- 

- 

- 

- 

- 

Article  13:  bans  political  parties  and  other  organisations  which  include  or  allow 
racial hatred in their programme or activities. 
Article 25: principle of the equal rights of religious associations.  
Article  33(1),  33(2):  both  women  and  men  have  equal  rights  in  family,  political, 
social  and  economic  life  and,  in  particular,  both  have  equal  rights  to  education, 
employment  and  promotion,  equal  pay  for  equal  work,  social  benefits,  holding 
posts, etc. 
Article  35(1):  guarantees  people  the  freedom  to  preserve  and  develop  their  own 
language, preserve customs and traditions and develop their own culture. 
Article  35(2):  national  and  ethnic  minorities  have  the  right  to  establish  their  own 
educational, cultural and religious institutions. 
Articles  53,  54(1),  58(1)  and  60:  freedom  of  conscience  and  religion,  freedom  of 
expression,  freedom  of  association  and  the  right  of  access  to  public  services  are 
equally safeguarded for all Polish citizens, including members of national and ethnic 
minorities. 
Article  67(1):  people  unable  to  work  due  to  illness  or  disability  and  people  who 
have reached the age of retirement are guaranteed the right to social security. 
Article 69: public authorities must provide, in accordance with statutes, assistance 
to people with disabilities to ensure their subsistence, adaptation to work and social 
communication. 
The  Constitution  uses  various  terms  for  those  entitled  to  rights  and  freedoms:  in 
some articles, it uses ‘everyone’ or ‘anyone’, but in others it uses the term ‘citizen’. 
However,  it  also  includes  a  general  clause  of  protection:  Article  37(1),  which 
provides that ‘Anyone, being under the authority of the Polish State, shall enjoy the 
freedoms and rights ensured by the Constitution. 2. Exemptions from this principle 
with respect to foreigners shall be specified by statute’. 

33   The Constitutional Tribunal received 135 questions of law from the judges in 2015, but only 21 in 2016, 21 

in 2017, 15 in 2018 and 23 in 2019. See annual information regarding the Tribunal at: 
https://trybunal.gov.pl/publikacje/informacje-o-problemach-wynikajacych-z-dzialalnosci-i-orzecznictwa-
tk/od-2003.  

16 

 
 
 
 
 
 
 
2 

THE DEFINITION OF DISCRIMINATION  

2.1  Grounds of unlawful discrimination explicitly covered  

The  following  grounds  of  discrimination  are  explicitly  prohibited  in  the  main  legislation 
(listed in the Introduction) transposing and implementing the two EU anti-discrimination 
directives:  

ETA, Article 1: gender, race, ethnic origin, nationality, citizenship (see the scope below), 
religion, belief, political opinion, disability, age and sexual orientation. 

The  Labour  Code,  Article  18(3a)(1):  gender,  age,  disability,  race,  religion,  nationality, 
political  opinion,  membership  of  a  trade  union,  ethnic  origin,  belief,  sexual  orientation, 
employment for a definite or indefinite period of time, part-time or full-time employment. 
The grounds are listed as examples only, the list remaining open because of the Article’s 
wording: ‘any discrimination […] in particular on the grounds of …’. This means that other 
grounds  of  discrimination  could  equally  be  taken  into  consideration  by  the  courts  when 
applying  this  provision  (but  since  the  number  of  cases  is  very  limited,  it  does  not  often 
happen in practice). 

2.1.1  Definition of the grounds of unlawful discrimination within the directives 

a) 

Racial or ethnic origin 

There  is  no  law  on  discrimination,  taking  into  account  the  2010  Equal  Treatment  Act, 
which defines grounds of racial or ethnic origin. 

Racial origin 
The 2008 amendment to the Act on  Granting Protection to Aliens on the Territory of the 
Republic  of  Poland,34  which  transposed  the  Qualification  Directive35  and  the  Asylum 
Procedures Directive,36 is not part of anti-discrimination legislation (and was not applied 
in  a  context  of  counteracting  discrimination),  but  it  introduced  a  definition  of  ‘race’. 
Article  14  includes  some  definitions  that  are  useful  in  ‘assessing  the  grounds  of 
persecution’ for people who apply for refugee status: 

‘The  concept  of  race  includes  in  particular  colour  of  skin,  descent,  or  membership 
of  a  particular  ethnic  group’  and  ‘the  concept  of  nationality  is  not  limited  to  a 
citizenship  or  its  absence,  but  shall  in  particular  include  membership  of  a  group 
defined  by:  a)  cultural,  ethnic  or  linguistic  identity  or  b)  common  geographical  or 
political origin or c) linkage with the population of another country [...].’ 

Ethnic origin  
Definitions  of  ‘ethnic  minority’  and  ‘national  minority’  that  could  be  used  in  disputes 
under  anti-discrimination  law  are  included  in  the  Act  on  National  and  Ethnic  Minorities 
and Regional Languages: 

‘A  national  minority  is  a  group  of  Polish  citizens  which  fulfils  all  the  following 
conditions: 

34   Act on the amendment of the Act of 13 June 2003 on Granting Protection to Aliens on the Territory of 

Poland (Ustawa z dnia 13 czerwca 2003 r. o udzielaniu cudzoziemcom ochrony na terytorium 
Rzeczypospolitej Polskiej), 18 March 2008. 

35   Council Directive 2004/83/EC on minimum standards for the qualification and status of third country 

nationals or stateless persons as refugees or as persons who otherwise need international protection and 
the content of the protection granted. 

36   Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and 

withdrawing refugee status.  

17 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
1) 
2) 

3) 
4) 

5) 

6) 

is less numerous than the rest of the Polish population; 
differs in a significant manner from other citizens by way of language, culture 
or tradition; 
aspires to preserve its own language, culture or tradition; 
has  awareness  of  its  historic  national  community  and  is  focused  on  its 
expression and protection; 
has  inhabited  the  territory  of  the  Republic  of  Poland  for  at  least  100  years; 
and 
identifies itself with a nation organised in its own state.’37 

The Act goes on to enumerate the recognised national minorities:  Armenian, Belarusian, 
Czech, German, Jewish, Lithuanian, Russian, Slovak and Ukrainian.38 

‘An  ethnic  minority  is  a  group  of  Polish  citizens  which  fulfils  all  the  following 
conditions: 

1) 
2) 

3) 
4) 

5) 
6) 

is less numerous than the rest of the Polish population; 
differs in a significant manner from other citizens by way of language, culture 
or tradition; 
aspires to preserve its own language, culture or tradition; 
has  awareness  of  its  historic  ethnic  community  and  is  focused  on  its 
expression and protection; 
has inhabited the territory of the Republic of Poland for at least 100 years; 
does not identify itself with a nation organised in its own state.’39 

As above, the Act goes on to enumerate the recognised ethnic minorities: Karaimi, Lemk, 
Roma and Tatar.40 

The  above  definitions  have  been  criticised,  for  two  reasons.  First,  they  exclude  some 
significant  national  or  ethnic  groups  in  Poland  (e.g.  ‘new  immigrants’  such  as  the 
Vietnamese).  Furthermore,  the  definitions  are  restricted  to  Polish  citizens  and  therefore 
do  not  refer,  for  example,  to  migrant  workers  originating  from  neighbouring  countries 
(e.g. Ukrainians).  

The aim of the Act on National and Ethnic Minorities and Regional Languages is, however, 
to  provide  certain  rights  –  mostly  linguistic  and  cultural  rights  –  to  national  and  ethnic 
minorities,  as  well  as  to  protect  them  through  state  action  (in  2014,  social  integration 
was added as a goal). Article 6 of the Act on National and Ethnic Minorities and Regional 
Languages  prohibits  discrimination  based  on  membership  of  a  minority.  This  provision 
clearly refers only to the national and ethnic minorities provided for in the Law.  

b) 

Religion and belief 

There  is  no  law  on  discrimination,  taking  into  account  the  2010  Equal  Treatment  Act, 
which defines grounds of religion and belief. 

The 2008 amendment to the Act on  Granting Protection to Aliens on the Territory of the 
Republic of Poland,41 mentioned above, introduced a definition of ‘religion’: 

‘The concept of  religion shall in particular include: a) having theistic, non-theistic 
or  atheistic  beliefs,  b)  participation,  or  refraining  from  participation,  in  religious 

37   Act on National and Ethnic Minorities and Regional Languages, 6 January 2005, Article 2(1). 
38   Act on National and Ethnic Minorities and Regional Languages, 6 January 2005, Article 2(2). 
39   Act on National and Ethnic Minorities and Regional Languages, 6 January 2005, Article 2(3). 
40   Act on National and Ethnic Minorities and Regional Languages, 6 January 2005, Article 2(4). 
41   Act on the amendment of the Act of 13 June 2003 on Granting Protection to Aliens on the Territory of 

Poland, 18 March 2008. 

18 

 
 
 
 
 
 
 
 
 
 
 
 
rituals, performed in public or in private, individually or collectively, c) other acts of 
a religious character, beliefs expressed or form of individual or collective behaviour 
as a result of religious beliefs or related to them.’ 

c)  Disability 

There  is  no  law  on  discrimination,  taking  into  account  the  2010  Equal  Treatment  Act, 
which defines the ground of disability. 

There  are  some  definitions  of  ‘disability’  at  national  level,  which  relate  to  certain  legal 
acts.  

The Act on the Vocational and Social Rehabilitation and Employment of Disabled Persons 
(Disabled  Persons  Act)42  defines  the  term  ‘disability’  as  ‘a  permanent  or  temporary 
inability  to  carry  out  social  roles  due  to  a  permanent  or  long-term  disturbance  of 
performance  of  the  human  organism,  in  particular,  resulting  in  incapacity  to  work.’43  A 
disability  has  to  be  confirmed  by  a  competent  medical  authority44  at  three  possible 
levels: slight, moderate or severe.45 

The  above  definition  may  be  of  some  help  in  clarifying  what  disability  means  for  the 
purposes of the Labour Code (which itself does not contain a definition of disability). It is 
important to stress that the Disabled Persons Act refers only to those disabilities that are 
registered  by  the  medical  authorities.  A  case  could  come  before  the  Polish  courts 
involving  an  individual  with  a  category  of  disability  that  has,  for  various  reasons,  not 
been  certified  by  the  relevant  authority.  In  this  event,  the  court  itself  must  decide 
whether  the  person  concerned  is  disabled  or  not.  The  court  may  take  into  account  the 
definition  contained  in  the  Disabled  Persons  Act,  but  it  may  go  beyond  this  definition. 
Some  disabilities  may  not  qualify  as  a  disability  under  the  Act,  but  people  with  such  a 
disability  may  nevertheless  be  subject  to  discrimination  or  may  feel  themselves  to  be 
disabled. 

According  to  Article  69  of  the  Polish  Constitution,  ‘Public  authorities  shall  provide,  in 
accordance  with  statutes,  assistance  to  disabled  persons  to  ensure  their  subsistence, 
adaptation to work and social communication’. A commentary on the Constitution points 
out the open character of the term ‘disability’.46 In particular, it says that, in relation to 
the  meaning  of  ‘disability’,  the  drafters  of  the  Constitution  took  into  account  the 
recommendations of the Committee of Ministers of the Council of Europe of 1992 as well 
as  the  Disabled  Persons  Act.  According  to  this  commentary,  the  Constitution  should  be 
interpreted  as  providing  a  much  broader  definition  of  ‘disability’  than  the  Disabled 
Persons Act. Under the Constitution, ‘disability’ has an independent meaning that is not 
restricted by any decision of the medical authorities.  

Similarly,  law  analysis  leads  to  the  conclusion  that  under  the  Labour  Code,  the  term 
should  also  be  interpreted  independently  and  should  not  be  restricted  to  the  meaning 
contained in the Disabled Persons Act.  

Thus,  there  are  differences  between  the  concept  of  disability  adopted  by  the  CJEU  and 
the Polish definition. While the CJEU focuses on the interaction between impairments and 
environmentally created barriers, the Polish definition in the Disabled Persons Act focuses 
exclusively on impairments.  

42   Disabled Persons Act, 27 August 1997. 
43   Compare with Disabled Persons Act, 27 August 1997, Article 2(10). 
44   Disabled Persons Act, 27 August 1997, Article 1. 
45   Disabled Persons Act, 27 August 1997, Article 3(1). 
46   Garlicki L. (ed.) (2003), Komentarz do Konstytucji RP (Commentary on the Polish Constitution), 

Wydawnictwo Sejmowe, Volume III, Warsaw. 

19 

 
 
 
 
 
 
 
 
 
 
 
Another  difference  is  that,  according  to  the  definition  in  the  Disabled  Persons  Act, 
disability must be confirmed by a competent medical authority – something which is not 
required  by  the  CJEU.  However,  as  mentioned  above,  when  determining  whether 
discrimination  has  taken  place,  the  Polish  courts  are  not  bound  by  the  definition  in  the 
Disabled Persons Act.  

Finally,  the  guidance  contained  in  the  UNCRPD  (the  Convention  was  ratified  on  6 
September 2012) may be used. In fact, reference may already be made to the guidance 
in the UNCRPD on the concept of persons with disabilities before a court or administrative 
body  (once  ratified,  an  international  treaty  becomes  a  source  of  domestic  law  and  may 
be relied on in court and administrative proceedings).  

The  Ombud  has  repeatedly  drawn  attention  to  the  need  to  change  the  system  of 
requiring  disability  to  be  confirmed  by  a  competent  medical  authority.  In  the  Ombud’s 
opinion,  according  to  the  UNCRPD  ‘this  system  should  allow  to  determine  the 
personalised  support  needed  for  a  given  person,  both  financial  and  non-financial. 
According to the Ombud, three levels of disability currently in use are inadequate in this 
respect. It is important that the new system of confirming disability should focus on the 
potential of a person with disability, and not on his/her dysfunctions’.47 The idea concerns 
disability  assessment  not  just  in  the  non-discrimination  context,  but  more  broadly,  for 
the  purposes  of  claiming  a  benefit  or  similar.  Once  elaborated,  however,  the  proper 
system  of  disability  assessment  could  also  be  used  in  the  context  of  non-discrimination 
claims. 

d) 

Age 

There is no law on discrimination, taking into account the ETA, which defines grounds of 
age. In practice, however, it is recognised that it covers both younger and older groups 
of citizens.48  

The  Act  on  Elderly  People  (senior  citizens),  passed  in  2015,  defines  ‘senior  citizens’  as 
persons  of  60  years  of  age  or  older.49  However,  despite  the  fact  that  the  Law  provides 
the exact age at which someone qualifies as a senior citizen, it does not have any binding 
effect on anti-discrimination laws.  

e) 

Sexual orientation 

There  is  no  law  on  discrimination,  taking  into  account  the  2010  Equal  Treatment  Act, 
which defines grounds of sexual orientation. 

The 2008 amendment to the Act on Granting Protection to Aliens on the Territory of the 
Republic of Poland,50 mentioned above, introduced a definition of ‘sexual orientation’: 

‘Depending on the conditions prevailing in the country  of  origin, a particular social 
group  might  include  a  group  whose  members  share  a  common  sexual 
orientation,  but  sexual  orientation  cannot  include  acts  which,  according  to  Polish 
law, constitute crimes.’ 

There is a small amount of anti-discrimination case law relating to discrimination because 
of  sexual  orientation  (mostly  relating  to  gay  and  lesbian  people).  There  is  no  anti-

47   Ombud, annual report for 2018, p. 99. 
48   See, for instance, the Ombud’s annual reports in which he addresses cases of age discrimination relating to 

different age groups.  

49   Act on Elderly People, (Ustawa z dnia 11 września 2015 r. o osobach starszych), 11 September 2015.  
50   Act on the amendment of the Act of 13 June 2003 on Granting Protection to Aliens on the Territory of 

Poland (Ustawa z dnia 13 czerwca 2003 r. o udzielaniu cudzoziemcom ochrony na terytorium 
Rzeczypospolitej Polskiej), 18 March 2008. 

20 

 
 
 
 
 
 
 
 
 
 
 
 
discrimination  case  law  that  might  indicate  how  the  judiciary  understands  ‘sexual 
orientation’.  

2.1.2  Multiple discrimination 

In Poland, multiple discrimination is not prohibited in law. 

Some  Polish  laws  stipulate  that  discrimination  might  occur  on  the  basis  of  one  or  more 
grounds,  but  do  not  treat  the  situation  of  multiple  discrimination  differently  (the  anti-
discrimination  provisions  of  the  Labour  Code,  for  example,  provide  definitions  of  direct 
and  indirect  discrimination  that  refer  to  ‘one  or  several  grounds’).  However,  the  2010 
Equal  Treatment  Act  does  not  mention  the  possibility  of  ‘several  grounds’,  listing  the 
grounds of discrimination separately. In draft laws proposed in 2012 (but never passed), 
the concept of multiple discrimination was introduced.51  

Cases  of  discrimination  on  more  than  one  ground  may  be  adjudicated  under  the  law  in 
force,  despite  the  lack  of  a  definition  of  multiple  discrimination.  However,  they  are  not 
treated in any special way, and in most cases, it is enough for the court to identify one 
ground of discrimination. Legislation dealing with multiple discrimination would therefore 
definitely be useful.  

In  cases  of  discrimination  on  the  ground  of  gender  plus  other  grounds,  courts  tend  to 
focus  on  the  gender  discrimination  and,  once  this  has  been  proved,  they  do  not  devote 
attention  to  other  causes  of  discrimination.  A  good  example  to  illustrate  this  issue 
concerns discrimination in cases of ‘forced retirement’, when employees are dismissed on 
reaching retirement age. Since the retirement age for women was for many years (and is 
once again) lower than the age for men (as a general rule, it is 60 for women and 65 for 
men),  cases  of  forced  retirement  for  women  were  treated  by  the  courts  as  gender 
discrimination  and  the  issue  of  age  discrimination  never  attracted  attention  (gender 
discrimination  prevailed  over  age  discrimination).  However,  similar  cases  involving  men 
were  treated  as  age  discrimination.  Only  in  2009  did  the  Supreme  Court  state  in  a 
resolution  that  such  cases  involve  two  kinds  of  discrimination:  indirect  discrimination 
because  of  gender  and  direct  discrimination  on  the  ground  of  age.52  Since  the  law  was 
changed  and  the  legislation  reverted  to  setting  different  retirement  ages  for  women  (at 
60) and men (at 65), similar cases may arise in future.53 

Occasionally,  cases  occur  in  which  more  than  one  ground  of  discrimination  is  identified. 
In one case, for instance, the district and regional courts identified discrimination on the 
grounds  of  both  sexual  orientation  and  obesity  (obesity  is  not  a  listed  characteristic  as 
such).54  

The  ETA  has  been  repeatedly  criticised  by  international  bodies  and  organisations.  In 
September  2018,  the  UN  Committee  on  the  Rights  of  Persons  with  Disabilities 
recommended  that  Poland  explicitly  recognise  and  prohibit  multiple  and  intersectional 
discrimination  based  on  disability,  gender,  age,  ethnicity,  gender  identity  or  sexual 
orientation and all other premises in all areas of life, and that it set up judicial and quasi-

51   See Government Plenipotentiary for Equal Treatment (2013), Report on the Activities of the Government 
Plenipotentiary for Equal Treatment for the period 1 January 2012 – 31 December 2012 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2012 r. do 31 
grudnia 2012 r.), Warsaw, pp. 14-17, and the draft law, available at: 
http://orka.sejm.gov.pl/Druki7ka.nsf/0/866BA4538180DB32C1257AFC003C8D94/%24File/1051.pdf. 

52   Supreme Court, resolution of 21 January 2009.  
53   In May 2012, the retirement age was changed by Parliament. The normal retirement age for both men and 
women was set at 67 (to be introduced incrementally). However, in 2016, the previous retirement ages (60 
for women, 65 for men) were restored and came into force in October 2017.  

54   See Słubice District Court, judgment of 18 June 2012, No. IV P 30/11; Gorzów Wielkopolski Regional Court, 

judgment of 27 November 2012, No. VI Pa 56/12 (not published).  

21 

 
 
 
 
 
 
 
 
 
judicial  mechanisms  to  prevent  and  protect  against  discrimination  against  people  with 
disabilities, including comprehensive damages mechanisms.55  

In his comments on the draft Strategy for People with Disabilities 2020-2030, the Ombud 
pointed  out  that,  in  the  introduction  to  the  strategy,  the  situation  of  women  and  girls 
with disabilities was noted, acknowledging that this group  encounters specific additional 
barriers to full inclusion in public, social and professional life. However, their needs (and 
related recommendations of the  UN Committee) were not included in any of the priority 
actions  planned  by  the  Government  for  the  next  10  years.  This  gives  rise  to  serious 
concern  that  women  and  girls  with  disabilities  will  continue  to  remain  invisible  to  the 
state’s disability policy.56 

The Ombud also pointed out that the most numerous group with disabilities indicated in 
the statistics are elderly people who face various types of disabilities and other difficulties 
resulting  from  age-related  health  conditions.  Seniors  with  disabilities  are  perceived  not 
only through the prism of stereotypes relating to disability, but also through the prism of 
stereotypes typical  of  old age, which are  related to ageism. The draft  strategy does not 
recognise  this  problem  and  does  not  refer  in  any  way  to  the  activities  already  planned 
under the resolution Social Policy for Older People 2030 – safety, participation, solidarity 
(adopted in 2018), showing a large inconsistency with this document.57 

In Poland, there is no case law dealing with multiple discrimination. 

2.1.3  Assumed and associated discrimination 

a)  Discrimination by assumption 

In  Poland,  discrimination  based  on  a  perception  or  assumption  of  a  person’s 
characteristics is not prohibited in national law.  

In  draft  laws  presented  in  2012  (but  never  passed),  the  concept  of  assumed 
discrimination was introduced.58  

One can imagine that the concept of discrimination by assumption could be introduced by 
a  court  ruling  (as  happened  regarding  the  concept  of  discrimination  by  association;  see 
below) but such rulings have not thus far been identified.  

b)  Discrimination by association 

In Poland, discrimination based on association with persons with particular characteristics 
is not prohibited in national law.   

In  draft  laws  presented  in  2012  (but  never  passed),  the  concept  of  discrimination  by 
association was introduced.59  

55   See final remarks adopted by the Committee on the Rights of Persons with Disabilities on 29 October 2018, 

CRPD/C/POL/CO/1, points 8b and c. See also Ombud, annual report for 2020, pp. 391-401. 

56   Ombud, annual report for 2020, pp. 392-393.  
57   Ombud, annual report for 2020, pp. 392-393.  
58   See Government Plenipotentiary for Equal Treatment (2013), Report on the Activities of the Government 
Plenipotentiary for Equal Treatment for the period 1 January 2012 – 31 December 2012 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2012 r. do 31 
grudnia 2012 r.), Warsaw, pp. 14-17, and the draft law, available at: 
http://orka.sejm.gov.pl/Druki7ka.nsf/0/866BA4538180DB32C1257AFC003C8D94/%24File/1051.pdf. 
59   See Government Plenipotentiary for Equal Treatment (2013), Report on the Activities of the Government 
Plenipotentiary for Equal Treatment for the period 1 January 2012 – 31 December 2012 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2012 r. do 31 
grudnia 2012 r.), Warsaw, pp. 14-17, and the draft law, available at: 
http://orka.sejm.gov.pl/Druki7ka.nsf/0/866BA4538180DB32C1257AFC003C8D94/%24File/1051.pdf. 

22 

 
 
 
 
 
 
 
 
 
 
 
 
 
Two court rulings that introduced the concept of discrimination by association have thus 
far been identified.  

One of these rulings concerned the first case finally decided under the ETA (2014 – first 
instance  ruling,  2015  –  second  instance  ruling).60  XY  worked  as  a  shop  security  guard 
employed by Company Z. XY took  part in the equality parade (focused traditionally, but 
not  exclusively,  on  the  rights  of  the  LGBTQ  community),  clips  of  which  were  shown  on 
television. After the broadcast, XY received a text message from his employer (from the 
security chief of the store where he worked), in which he was informed that he was fired. 
The  information  was  confirmed  in  a  telephone  conversation,  with  the  argument  that  an 
individual who participates in such events and is associated with groups organising them 
cannot  be  a  security  guard  because  it  tarnishes  the  company’s  image.  XY  sued  the 
employer,  claiming  discrimination  by  association  based  on  sexual  orientation.  The  court 
of first instance found that there had been discrimination by association and awarded the 
claimant  PLN 2 500  (EUR 625)  for  material  damages  only  and  refused  to  grant  non-
material damages.  

In  the  second  case,  YZ  (a  journalist  and  known  media  personality)  sued  the  Roman 
Catholic  Diocese  of  H.  for  compensation  for  infringement  of  the  rule  of  equal  treatment 
on  the  ground  of  sexual  orientation  by  association  (direct  discrimination  and 
harassment),  referring  to  the  ETA,  EU  directives  and  CJEU  jurisprudence.  According  to 
YZ,  he  supported  on  social  media  the  petition  for  legalising  civil  partnerships  (for  both 
heterosexual and same-sex partners). Shortly after, he lost the job (YZ argued there was 
a  verbal  civil  agreement)  of  running  a  Radio  B.  concert  in  D.  The  Catholic  priest  who 
organised  the  concert  told  him  that  this  was  because  he  supported  gays.  The  district 
court of first instance (sąd rejonowy) – dismissed the lawsuit, stating that there was no 
binding  contract  between  the  parties.  In  respect  of  discrimination,  the  court  did  not 
accept  the  shift  of  the  burden  of  proof,  arguing  that  the  claimant  himself  should  have 
provided  more  evidence.  The  court  also  argued  that  the  organiser  of  the  concert,  being 
part  of  the  Catholic  Church  structure,  had  a  right  to  refuse  collaboration  with  persons 
who  support  ideas  with  which  the  Catholic  Church  does  not  agree.  Even  if  one  could 
conclude, therefore, that the reason for the breach of contract was the claimant’s support 
for civil partnerships between  same-sex partners, it would not constitute discrimination. 
The  court  relied  on  Article  5(7)  of  the  ETA,  and  similar  provisions  of  the  Labour  Code 
(genuine,  determining  and  proportionate  occupational  requirement).  YZ  appealed  the 
ruling. 

In  March  2017  the  regional  court  of  second  instance  (sąd  okręgowy)  reversed  the 
verdict, finding that there had been discrimination and awarding PLN 1 000 (EUR 250) to 
YZ  and  PLN 1 000  to  the  PTPA  (the  CSO  representing  the  claimant).  The  court  decided 
that  there  was  a  binding  verbal  contract  between  the  parties.  The  court  stated  that  the 
claimant had provided enough evidence to substantiate discrimination and the burden of 
proof shifted to the respondent, who had not proved that there was no breach of the rule 
of equal treatment. According to the court, the limitations stemming from Article 5(7) of 
the  ETA  (the  court  of  first  instance  referred  to  these)  did  not  apply  in  the  given  case. 
Finally, the court concluded that the respondent discriminated against the claimant – the 
court  did  not  discuss  the  concept  of  discrimination  by  association,  but  found  that  there 
had been indirect discrimination on the grounds of political opinion (światopogląd).  

As the claimant YZ did not wish to publicise his case, there were no media reports on the 
rulings, and the PTPA did not provide official information about it. The verdict is final.  

60   Warsaw Śródmieście District Court, judgment of 9 July 2014, XY and Polish Society of Anti-discrimination 
Law on behalf of XY v. Company Z, No. VI C 402/13; Warsaw Regional Court (second instance), judgment 
of 18 November 2015, No. V Ca 3611/14 (not published).  

23 

 
 
 
 
 
 
 
2.2  Direct discrimination (Article 2(2)(a)) 

a) 

Prohibition and definition of direct discrimination 

In Poland, direct discrimination is prohibited and defined in national law.  

The 2010 Equal Treatment Act (Article 3(1)) defines direct discrimination in line with the 
EU equality directives. It stipulates that direct discrimination takes place when ‘a natural 
person  because  of  their  gender,  race,  ethnic  origin,  nationality,  religion,  belief,  political 
opinion,  disability,  age  or  sexual  orientation,  is  treated  less  favourably  than  another  is, 
has  been  or  would  be  treated  in  a  comparable  situation’.  Even  though  the  provision 
refers  to  ‘natural  person’,  this  wording  has  never  given  rise  to  (nor  could  in  fact  be 
interpreted  as)  the  limitation  of  protection  from  direct  discrimination  to  one  person  as 
opposed to a group of persons.  

Parallel to this definition, the definition in the Labour Code is still in force. This is slightly 
different  and  erroneous,  most  probably  due  to  a  translation  error.  In  Article  2(2a)  of 
Directive  2000/43/EC,  the  ‘hypothetical’  nature  refers  to  the  behaviour  to  which  the 
discriminatory  treatment  is  being  compared  (treatment  of  another  person  in  a 
comparable situation) and not the discrimination itself, in contrast with the Labour Code, 
which reads (Article 18(3a)(3): ‘Direct discrimination takes place when an employee, for 
one or more reasons listed in paragraph 1, was, is, or may be treated, in a comparable 
situation, less favourably than other employees’. However, this erroneous translation has 
had no practical consequences  so far (for instance, in court  rulings) and remains  rather 
an academic issue.  

b) 

Justification for direct discrimination 

The ETA does not permit the justification of direct discrimination generally, or in relation 
to particular grounds as such. The specific exceptions are discussed below in Section 4 of 
this report (including the test that must be satisfied). 

Apart  from  these  exceptions  (transposed  from  the  directives),  the  ETA  states  expressis 
verbis  that  it  does  not  cover  the  spheres  of  private  and  family  life  (not  defining  them) 
and legal actions related to these spheres (Article 5(1)), nor does it cover the freedom to 
choose a party to a contract (it does not refer to employment), as long as the choice is 
not based on the grounds of gender, race, ethnic origin or nationality (Article 5(3)).  

However, Polish law permits the justification of both direct and indirect discrimination in 
respect of all grounds in the field governed by the Labour Code. In accordance with the 
Code,  in  order  to  justify  different  treatment  that  leads  to  a  breach  of  the  principle  of 
equal  treatment  in  employment,  the  employer  must  prove  the  existence  of  ‘objective 
reasons’  for  his/her  actions  (in  fact,  this  provision  regulates  the  shift  of  the  burden  of 
proof).61 As regards the specified ‘exclusion’ situations, see Section 2.3.b below. 

2.3  Indirect discrimination (Article 2(2)(b)) 

a) 

Prohibition and definition of indirect discrimination 

In Poland, indirect discrimination is prohibited and defined in national law. 

The ETA defines indirect discrimination, in general, in line with the  directives and states 
(Article  3(2))  that  indirect  discrimination  is  considered  to  take  place  in  a  situation  in 
which  unfavourable  differences  or  particular  disadvantage  occur  or  could  occur  for  a 
natural  person  because  of  their  gender,  race,  ethnic  origin,  nationality,  religion,  belief, 

61   Labour Code, 26 June 1974, Article 18(3b)(1) in fine. 

24 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
political  opinion,  disability,  age  or  sexual  orientation,  due  to  an  apparently  neutral 
provision,  criterion  used  or  practice/action  undertaken,  unless  that  decision,  criterion  or 
action is objectively justified by a legitimate aim and the means of achieving that aim are 
appropriate  and  necessary.  Even  though  the  provision  refers  to  ‘natural  person’,  this 
wording  has  never  given  rise  to  (nor  could  in  fact  be  interpreted  as)  the  limitation  of 
protection from direct discrimination to one person as opposed to a group of persons. 

It  may  be  noted  that  the  above  definition  lacks  direct  mention  of  the  comparator 
(‘compared with other persons’, as the directives put it). It must therefore be interpreted 
to mean that ‘unfavourable differences or particular disadvantage’ includes implied ‘other 
persons’ with whom a comparison can be made.  

Simultaneously,  the  definition  of  indirect  discrimination  formulated  in  the  Labour  Code, 
and  amended  in  2008,  is  still  valid  in  the  employment  field.62  According  to  the  Labour 
Code  indirect  discrimination  takes  place  when,  ‘due  to  an  apparently  neutral  provision, 
criterion  used  or  practice/action  undertaken,  unfavourable  differences  or  particular 
disadvantage  occur  or  could  occur  in  terms  of  the  establishment  and  termination  of 
employment, conditions of employment, promotion, and access to training for enhancing 
professional qualifications, for all or a large number of employees who are members of a 
group  distinguished  on  one  or  more  of  the  grounds  referred  to  in  § 1,  unless  that 
decision, criterion or action is objectively justified by a legitimate aim and the means of 
achieving that aim are appropriate and necessary’.63 

Although,  following  the  2008  amendment,  the  Labour  Code’s  definition  of  indirect 
discrimination  is  better  than  it  was  previously,  it  still  does  not  seem  to  be  fully 
compatible with the directives. Specifically, the definition refers to disadvantage for ‘all or 
a  large  number  of  employees  who  are  members  of  a  group  [...]’.  This  is  not  a 
requirement  found  in  the  directives,  and  it  is  problematic.  For  example,  an  indirectly 
discriminatory measure in relation to a disabled person might affect only a small number 
of  people  with  that  specific  disability,  rather  than  a  large  number  of  disabled  people. 
However, it is a theoretical issue, since ‘large number’ has not been interpreted in a way 
that would limit the protection. No relevant case law has been identified.  

b) 

Justification test for indirect discrimination 

The  definition  of  ‘indirect  discrimination’  as  quoted  above  has  been  in  force  since  1 
January 2011 (definition in the ETA) and since 18 January 2009 (definition in the Labour 
Code).  The concepts  of ‘legitimate aim’ and ‘appropriate and necessary measures’ were 
not  recognised  before.  It  is  therefore  difficult  to  say  –  due  to  the  lack  of  relevant  case 
law  –  how  they  would  be  treated  by  the  courts;  previously,  disproportionate  treatment 
could simply be justified by ‘other objective reasons’. 

However,  in  relation  to  both  direct  and  indirect  discrimination,  an  additional  amended 
provision  could  be  applied  that  specifies  under  which  circumstances  certain  conduct 
cannot  be  considered  as  discrimination.  The  following  differentiating  measures,  if  they 
are  proportionate  to  achieving  a  legitimate  aim,  do  not  amount  to  a  violation  of  the 
principle of equal treatment:64 

1) 

failure to employ an individual on the basis of one or more of the grounds listed in 
the definition of discrimination, if the type of work or working conditions mean that 
the  reason  or  reasons  for  different  treatment  are  genuine  and  determining 
occupational requirements; 

62   Act on the amendment of the Act on the Labour Code, 21 December 2008, in force since 18 January 2009. 
63   Labour Code, 26 June 1974, Article 18(3a)(4) (as amended). 
64   Labour Code, 26 June 1974, Article 18(3b)(2) (as amended). 

25 

 
 
 
 
 
 
 
 
 
2) 

3) 

4) 

changing the employee’s employment conditions in respect of working time, if this 
is  justified  by  reasons  not  related  to  employees,  and  without  reference  to  the 
grounds of discrimination listed in the definition of discrimination; 
applying measures that make a distinction in the legal situation of an employee on 
account of protection of the employee’s parenthood status or disability; 
using  the  criterion  of  length  of  service  in  setting  the  terms  of  employment  and 
dismissal,  remuneration  and  promotion  and  access  to  vocational  training,  which 
justifies differential treatment because of age. 

2.3.1  Statistical evidence 

a) 

Legal framework 

In Poland, there is legislation regulating the collection of personal data.  

On the one hand, there is constitutional protection for scientific research (Article 73), but 
on  the  other  hand,  according  to  the  Constitution  everyone  has  the  right  to  legal 
protection  of  their  private  life  and  family  life,  honour  and  good  reputation  and  to  make 
decisions about their personal life.65 Furthermore, no one may be obliged, except on the 
basis of an act of Parliament, to disclose personal information.66 

Due to the implementation of the EU General Data Protection Regulation (GDPR), a new 
Act on Personal Data Protection was adopted in 2018.67 Article 107.2 of the Act translates 
directly Article 9 of the GDPR and prohibits the processing of personal data that reveals 
racial  or  ethnic  origin,  political  opinions,  religious  or  philosophical  beliefs  or  trade  union 
membership,  and  the  processing  of  genetic  data,  biometric  data  for  the  purpose  of 
uniquely  identifying  a  natural  person,  data  concerning  health  or  data  concerning  a 
natural person’s sex life or sexual orientation. 

In accordance with the general framework set out in the Act on Personal Data Protection, 
the  Act  on  Public  Statistics68  makes  research  on  discrimination  possible  only  when 
sensitive data is gathered with the consent of the individuals involved.69  

An exceptional situation occurs when a national census is organised – in such a case, the 
provision of information might be obligatory but requires a special act of Parliament as a 
legal basis.70  

Thus far, there has been no tradition of data being collected solely for litigation purposes, 
nor  have  there  been  any  specific  examples.  However,  if  any  research  exists,  it  may  be 
submitted as additional evidence. 

In  Poland,  statistical  evidence  may  be  admitted  under  national  law  in  discrimination 
cases,  including  in  order  to  establish  indirect  discrimination.  However,  the  use  of 
statistical evidence is not (explicitly) permitted by national law. 

65   Constitution of the Republic of Poland, 2 April 1997, Article 47, available at: 

http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-republic-of-poland/. 

66   Constitution of the Republic of Poland, 2 April 1997, Article 51(1), available at: 

http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-republic-of-poland/. 
67   Act on Personal Data Protection (Ustawa z 10 maja 2018 r. o ochronie danych osobowych), 10 May 2018. 
68   Act on Public Statistics (Ustawa z dnia 29 czerwca 1995 r. o statystyce publicznej), 29 June 1995, as 

amended, available at: http://bip.stat.gov.pl/en/law/law-on-official-statistics/. 

69   Act on Public Statistics, 29 June 1995, Article 8, amended.  
70   Act on Public Statistics, 29 June 1995, Article 9(1); see, for instance, Act on the National Population and 

Housing Census in 2021 (Ustawa z dnia 9 sierpnia 2019 r. o narodowym spisie powszechnym ludności i 
mieszkań w 2021 r.), which provides that the next national census will be conducted from 1 April to 30 June 
2021.  

26 

 
 
 
 
 
 
 
 
 
 
 
 
Although  there  is  no  explicit  mention  of  the  use  of  statistical  evidence  to  establish 
indirect discrimination in Polish law, including in the ETA, this does not mean that it is not 
possible.  Under  the  Code  of  Civil  Procedure,  there  are  no  restrictions  regarding  the 
sources  or  forms  of  evidence.  The  Code  lists  the  most  common  of  these  and  provides 
principles concerning their admission, but does not exclude the possibility of other forms 
of  evidence,  such  as  statistics  (Article  232).  Article  233  of  the  Code  of  Civil  Procedure 
provides that the court must assess the evidence according to its own convictions, on the 
basis  of  a  comprehensive  examination  of  the  collected  material.  One  of  the  Supreme 
Court  judges,  in  her  academic  writings,  underlines  the  possibility  of  using  statistical 
data.71  Due  to  a  lack  of  court  cases,  it  is  difficult  to  predict  whether  this  would  be  a 
commonly used approach.  

b) 

Practice 

In  Poland,  statistical  evidence  is  not  used  in  practice  in  order  to  establish  indirect 
discrimination. 

There  have  been  no  cases  identified  involving  indirect  discrimination  in  which  statistics 
were used in order to prove discrimination.72  

2.4  Harassment (Article 2(3)) 

a) 

Prohibition and definition of harassment 

In Poland, harassment is prohibited and defined in national law.  

The  ETA  (Article  3(3))  defines  harassment  in  line  with  the  directives  as  any  unwanted 
conduct  with  the  purpose  or  effect  of  violating  the  dignity  of  a  natural  person  and  of 
creating  an  intimidating,  hostile,  degrading,  humiliating  or  offensive  environment.  The 
material  scope  of  the  prohibition  on  harassment  is  the  same  as  in  the  case  of  direct  or 
indirect discrimination, in all fields protected by the Act. Although the provision refers to 
‘natural person’, this wording has never given rise to (nor could in fact be interpreted as) 
the  limitation  of  protection  from  harassment  to  one  person  as  opposed  to  a  group  of 
persons. 

The  ETA  also  prohibits,  and  considers  as  unequal  treatment,  the  less  favourable 
treatment of people caused by rejection of harassment or submission to harassment and, 
in  addition,  it  prohibits  instructions  to  discriminate  or  harass  –  both  encouraging  and 
ordering discrimination or harassment (Article 3(5), Article 9).  

The  same  definition  (corrected  and  significantly  broader  than  before),  in  relation  to 
employees, was introduced into the Labour Code in 2008. The amended provision defines 
harassment as 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.  

A new provision was also added, stating that ‘Submission of an employee to harassment 
or  sexual  harassment,  as  well  as  the  taking  of  actions  rejecting  (counteracting) 
harassment  or  sexual  harassment,  may  not  result  in  any  adverse  consequences  for  the 
employee’.  

71   See, for instance, Gonera, K. (2016), ‘Stosowanie prawa antydyskryminacyjnego – perspektywa sądu, 

zagadnienia wybrane’ (‘Implementation of anti-discrimination law – court perspective, selected problems’), 
in Bojarski, Ł. (ed.) (2016), Wspólnie przeciw dyskryminacji. Sędziowie i organizacje obywatelskie na rzecz 
równego traktowania (Together against discrimination. Judges and CSOs for equal treatment), pp. 44-47.  

72   From interviews conducted to update this report. 

27 

 
 
 
 
 
 
 
 
 
 
 
 
 
In addition, both the ETA and the Labour Code describe sexual harassment as a specific 
form of harassment. 

In  Poland,  harassment  explicitly  constitutes  a  form  of  discrimination.  Both  sexual 
harassment  and  harassment  are  treated  as  forms  of  discrimination  and  thus  are 
prohibited in both the ETA and the Labour Code. 

b) 

Scope of liability for harassment 

Where harassment is perpetrated by an employee, the employer is liable. 

The general Labour Code rule (Article 120) provides that in the case of damage caused to 
a third party by an employee when performing occupational duties, only the employer is 
obliged  to  remedy  the  damage.  In  such  cases,  the  employer  has  recourse  against  the 
employee.  

Compensation claims as introduced by the ETA (Article 13) are governed by the general 
rules of the Civil Code and the Code of Civil Procedure. No specific provisions are included 
in the ETA. 

In general, on the basis of the Civil Code (Article 430) a person who on their own account 
entrusts  the  performance  of  an  act  to  another  person,  who  in  performing  that  act  is 
subject to their control and is under a duty to comply with their instructions, is liable for 
any damage caused through the fault of that person in the course of their performing the 
act in question.  

In  addition,  the  State  Treasury  is  responsible  for  actions  causing  damage  which  are 
perpetrated by a public servant in the course of their duties (Article 417).  

In the case of damage caused by discriminatory acts – most likely non-material damage 
–  the  employer  (the  state  or  its  representatives)  bears  responsibility  for  the  acts  of  its 
employees.  For  example,  a  state  hospital  is  responsible  for  the  actions  of  a  doctor  it 
employs (there are, of course, specific conditions to be fulfilled for this provision to apply, 
such  as  the  fact  that  there  must  be  an  employment  contract  between  the  hospital  and 
the  doctor).  In  such  cases,  an  individual  (the  claimant)  may  raise  the  issue  of  the 
employer’s responsibility for the actions of their employees. 

Similarly,  a  legal  entity  is  responsible  for  the  damage  caused  by  its  governing  body 
(Article 416 of the Civil Code).  

There is no significant case law on harassment in Poland. However, a case of harassment 
on the grounds of religion or lack of religion is described below.  

G.  J.  (the  complainant)  worked  as  a  mathematics  teacher  in  a  sports  school  (the 
respondent).  During  the  complainant’s  one-year  leave  (a  sabbatical),  a  cross  (crucifix) 
was placed in the teachers’ staff room on the initiative of K. W., a priest teaching religion 
in the school. The priest obtained the consent of some teachers to hang the cross (they 
signed a list).  G. J. found the  crucifix upon  returning to work after the  sabbatical.  G. J. 
removed  the  cross  from  the  wall  twice.  During  the  next  Pedagogical  Council  meeting 
(announced in advance without a specific agenda), the school head indicated in an initial 
speech  that  ‘the  council  was  convened  in  connection  with  removing  the  cross  from  the 
teachers’ staff room and was demanded by the majority of teachers, who were outraged 
by  removal  of  the  cross’  and  stated  that:  ‘We  already  know  who  dared  to  remove  the 
cross.’ During this speech, some teachers loudly expressed their indignation, using terms 
such as ‘scandal’ as well as ‘Who dared to remove the cross?’ and similar phrases. Other 
teachers,  namely  D.  F.  and  A.  G.,  described  the  atmosphere  of  the  meeting  as  like  ‘a 
lynching,  terror’.  Some  teachers  sent  a  complaint  to  the  school  head,  pointing  out  that 

28 

 
 
 
 
 
 
 
 
 
 
 
 
they did not agree that ‘G. J. did not follow the internal school complaints procedures  – 
and instead arbitrarily decided to remove the cross’. The school head decided to issue an 
admonition  as  a  penalty.  However,  after  G.  J.  formally  objected  to  the  penalty,  stating 
that  it  did  not  present  specific  charges  and  dates  for  committing  the  alleged  acts,  the 
school head quashed it. 

In addition, a written statement was issued by 44 teachers, which included the following 
wording:  ‘the  teacher  arbitrarily  and  unlawfully  twice  took  down  the  cross  (hung  in 
accordance  with  the  will  of  the  vast  majority  of  teachers).  In  addition,  G.  J.  notoriously 
and deliberately ignores the rules of conduct for teachers at school. Regarding herself as 
a  victim  who  is  the  person  hurt  in  this  situation,  should  be  considered  as  manipulation. 
This teacher's actions destroy the good image of the school.’ 

In  the  following  period,  the  complainant  pursued  correspondence  regarding  the  events 
described  above  with  the  Mayor,  the  Board  of  Education,  the  City  Council  and  the 
Governor. 

The  court  of  first  instance  stated  that  the  behaviour  of  the  employers  and  teachers 
described above had the effect of violating the dignity of G. J., creating an atmosphere of 
humiliation,  exclusion,  intimidation  and  hostility  towards  her  –  i.e.  discrimination  in  the 
form of harassment.73 

At  the  outset,  the  court  pointed  out  that  the  subject  of  the  proceedings  was  not  the 
resolution  of  the  issue  of  compliance  with  the  right  to  place  the  cross  in  school  rooms; 
the  essence  was  to  determine  whether  the  direct  behaviour  of  the  employer  or  the 
employer’s  toleration  and  acceptance  of  the  teachers’  behaviour  should  be  classified  as 
discrimination on the basis of political opinion under the meaning of the Labour Code. 

The District Court awarded G. J. the amount of PLN 5 000 (EUR 1 200) as compensation 
and  ordered  the  respondent  to  publish  an  apology  for  unlawful  admittance  of 
discriminatory  actions  against  G.  J.  and  violation  of  her  personal  dignity.  Both  sides 
(teacher and school) appealed against the verdict, but the appellate court dismissed both 
appeals.74 

After  the  Court  of  Appeal's  judgment,  the  school  paid  compensation  and  published  an 
apology.  Despite  this,  in  June  2017,  the  Regional  Prosecutor's  Office,  which  was  not  a 
party  to  the  case,  filed  a  cassation  appeal  to  the  Supreme  Court  arguing  that  the 
behaviour  of  the  school’s  headmaster  and  teachers  should  not  be  treated  as 
discrimination. The Supreme Court dismissed the cassation complaint and found that the 
behaviour  of  the  school  management  towards  the  teacher  constituted  discrimination 
against  the  employee  in  the  form  of  harassment  due  to  her  beliefs.75  A  verdict  of  the 
Supreme Court becomes final, but in this particular case the Prosecutor General/Minister 
of Justice submitted in February 2020 (16 months since the final Supreme Court verdict) 
an  extraordinary  cassation  to  the  Supreme  Court,  demanding  that  the  verdict  of  the 
Court of Appeal in Wrocław and the Supreme Court be set aside. The case is pending.76  

73   Opole Regional Court (first instance), judgment of 15 September 2016, No. V P 40/14, available at: 

https://www.saos.org.pl/judgments/27571.  

74  Wrocław Court of Appeal (second instance), judgment of 31 January 2017, No. III APa, 33/16, available at: 
http://orzeczenia.wroclaw.sa.gov.pl/content/$N/155000000001521_III_APa_000033_2016_Uz_2017-02-
10_001. 

75   Supreme Court (cassation), judgment of 7 November 2018, No. II PK 210/17, available at: 

http://www.sn.pl/orzecznictwo/SitePages/Baza_orzeczen.aspx?ItemSID=34043-57a0abe2-a73c-441d-
9691-b79a0c36be5c&ListName=Orzeczenia3&Tresc=krzy%u017c. 

76   The Prosecutor General used the power that he was granted by the amendment to the Act on the Supreme 
Court (3 April 2018). According to that Law (Article 89(1)), an extraordinary cassation may be lodged for 
any final judgment of the past 20 years if it is ‘necessary to ensure the rule of law and social justice’. 

29 

 
 
 
 
 
  
 
 
 
2.5  Instructions to discriminate (Article 2(4)) 

a) 

Prohibition of instructions to discriminate 

In  Poland,  instructions  to  discriminate  are  prohibited  in  national  law.  Instructions  to 
discriminate are defined as ‘ordering’ but also as ‘encouraging’, and therefore go beyond 
the scope of the directives.  

Instructions  to  discriminate  are  prohibited  in  employment  by  the  Labour  Code  (Article 
18(3a)(5)(1))  The  provision  of  the  Labour  Code  regarding  instructions  to  discriminate 
was  broadened  in  2008,  and  now  covers  both  encouraging  (which  existed  before)  and 
ordering (which was added) infringement of the principle of equal treatment with respect 
to another person.   

The  ETA  prohibits  instructions  to  discriminate,  including  both  encouraging  (zachęcanie) 
and  ordering  (nakazywanie)  someone  to  discriminate  (Article  3(5),  Article  9).  The 
material scope of the prohibition covers all fields protected by the Act.  

There are no specific provisions regarding the liability of legal persons for such actions. 

In Poland, instructions explicitly constitute a form of discrimination. 

b) 

Scope of liability for instructions to discriminate 

In Poland, the instructor is liable. 

The general Labour Code provision (Article 120) states that in the case of damage caused 
to  a  third  party  by  an  employee  when  performing  their  occupational  duties,  only  the 
employer  is  obliged  to  remedy  the  damage.  In  such  cases,  the  employer  has  recourse 
against  the  employee.  The  possibility  for  the  employer  to  be  held  directly  liable  for  the 
actions of employees exists in the event of instructions to discriminate.  

Compensation claims as introduced by the ETA (Article 13) are governed by the general 
rules of the Civil Code and the Code of Civil Procedure. No specific provisions are included 
in  the  Act:  a  person  who  has  incurred  damage  due  to  instructions  to  discriminate  can 
seek compensation according to general principles.  

In  general,  on  the  basis  of  the  Civil  Code  (Article  430),  a  person  who  on  their  own 
account entrusts the performance of an act to another person, who in performing that act 
is subject to their control and is under a duty to comply with their instructions, is liable 
for any damage caused through the fault of that person in the course of their performing 
the act in question.  

An interesting case in this respect was decided by the Poznań Court of Appeal in 2012.77 
It  concerned  the  liability  of  a  club  owner  for  the  discriminatory  actions  of  the  club’s 
security guards, who were employed not directly by the club but by a separate company 
hired by the owner. Both the security guards and the club owner admitted that the owner 
had  asked  the  security  guards  not  to  admit  Roma  customers.  The  Court  of  Appeal 
reversed  the  ruling  of  the  first  instance  court  and  ruled  that  the  restriction  of  access  to 
the  club  based  on  ethnic  origin  constituted  an  infringement  of  the  right  to  personal 
dignity as protected by the Civil Code. The Court also stated that, even though the club’s 
security  was  provided  by  an  external  company,  the  club’s  owner  bore  responsibility  for 
the actions and harm caused by the security guards.   

77   Poznań Appellate Court, judgment of 29 February 2012, A.G. v. K. L.-B., No. I ACA 1162/11. 

30 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
In  addition,  the  State  Treasury  is  responsible  for  actions  causing  damage  which  are 
perpetrated by a public servant in the course of their duties.   

The  employer  (the  state  or  its  representatives)  bears  responsibility  for  the  acts  of  its 
employees.  For  example,  a  state  hospital  is  responsible  for  the  actions  of  a  doctor  it 
employs (there are, of course, specific conditions to be fulfilled for this provision to apply, 
such  as  the  fact  that  there  must  be  an  employment  contract  between  the  hospital  and 
the  doctor).  In  such  cases,  an  individual  (the  claimant)  may  raise  the  issue  of  the 
employer’s responsibility for the actions of their employees. 

Similarly,  a  legal  entity  is  responsible  for  the  damage  caused  by  its  governing  body 
(Article 416 of the Civil Code).  

According to general penal rules, if instructions to discriminate lead a person to commit a 
crime,  the  person  who  issued  the  instructions  may  be  held  criminally  responsible  for 
directing or instructing the perpetration of the crime, or for aiding or instigating it.   

2.6  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5 

Directive 2000/78) 

a) 

Implementation  of  the  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities in the area of employment 

In Poland, the duty on employers to provide reasonable accommodation for people with 
disabilities is included in the law and is defined.  

The Disabled Persons Act (amended by the 2010 ETA) provides in Article 23a(1-3) that: 

- 

- 

- 

- 

an  employer  is  obliged  to  provide  the  necessary  reasonable  accommodation  for  a 
disabled  person  with  whom  they  are  in  an  employment  relationship,  or  who  is 
participating  in  a  recruitment  process  or  undertaking  vocational  or  professional 
training or an apprenticeship or internship; 
necessary  reasonable  accommodation  means  introducing  necessary  changes  and 
adjustments  in  a  particular  case  in  line  with  the  specific  needs  reported  to  the 
employer  stemming  from  somebody’s  disability,  unless  the  introduction  of  such 
changes or adjustments would impose a disproportionate burden on the employer; 
the burden is not deemed disproportionate when it is sufficiently remedied by public 
funds; 
failure to provide necessary reasonable accommodation is deemed an infringement 
of  the  principle  of  equal  treatment  in  employment  within  the  meaning  of  Article 
183a(2-5) of the Labour Code. 

The  amendment  of  20  December  2002  to  the  Disabled  Persons  Act  introduced  the 
definition  of  a  workstation  adapted  to  the  needs  of  a  disabled  person.  This  is  a 
workstation  which  is  suitably  equipped  and  adapted  to  the  needs  arising  from  the  type 
and degree of disability of the individual (according to the certificate of disability granted 
under this Act).  

b) 

Case law 

Since  the  ETA  entered  into  force  (together  with  its  amendment  to  the  Disabled  Persons 
Act), there has been little jurisprudence on the issue. 

31 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Supreme Court, in its judgment of 12 May 2011,78 emphasised that the obligation to 
provide  reasonable  accommodation  should  be  interpreted  in  line  with  recital  20  of  the 
preamble to Directive 2000/78/EC and that it extends beyond premises or equipment to 
cover working time and the distribution of duties.   

In  the  Supreme  Court  judgment  of  12  April  2012,79  a  junior  prosecutor  (asesor)  was 
dismissed because, according to the regional prosecutor, as a disabled person she could 
not  perform  all  the  duties  of  a  prosecutor.  She  challenged  the  dismissal  and  finally  lost 
the case in the Supreme Court. The substance of the verdict was as follows:  

1.  

the  assessment  of  whether  a  prosecutor  with  a  disability  is  able  to  perform  their 
duties depends  on the  circumstances of the particular  case, in which  an important 
role  is  played  by  the  degree  of  disability  (limitation  of  physical  fitness)  and  the 
terms of reference (scope of tasks) of the prosecutor; 

2.   health at a level sufficient to enable the performance of all prosecution tasks within 
flexible  working  hours  is  a  genuine  and  determining  occupational  requirement  for 
the district prosecutor (junior prosecutor); 
the  elimination  from  the  scope  of  activities  of  the  district  prosecutor  (junior 
prosecutor) of the duties performed outside the prosecutor’s office and demanding 
physical  effort,  which  are  of  the  same  importance  to  the  proceedings  as  other 
prosecutorial activities, does not constitute reasonable accommodation.  

3.  

The  Supreme  Court’s  judgment  of  4  June  201380  concerned  hypothetical  disability,  not 
explicitly raised in the complaint to the SC. The termination of an employment contract, 
due  to  an  employee’s  loss  of  the  ability  to  perform  work  (not  the  worker’s  fault),  as  a 
result of receiving a certificate of moderate disability, may be justified only when such a 
state  of  disability  objectively  prevents  (excludes)  the  performance  of  basic  or  essential 
employee  duties  by  a  disabled  employee,  despite  the  use  of  rationally  justified 
reasonable accommodation improvements to the employee workplace. 

The use by the employee (the applicant) of the right to change the organisation of work 
in connection with the identified disability cannot be a reason justifying the termination of 
the employment relationship (Article 18(3e) of the Labour Code).  

From  the  justification:  The  cassation  appeal  lacked  allegations  regarding  unjustified 
termination of the employment contract (Article 45(§1) of the Labour Code) or violation 
of  the  principle  of  equal  treatment  and  the  prohibition  of  discrimination  because  of  the 
applicant’s disability (Article 18(3a) and (3e) of the Labour Code). However, the Supreme 
Court found that the applicant’s procedural grounds were justified, because the judgment 
appealed  was  delivered  prematurely  without  proper  explanation  of  the  essential 
circumstances of the case. 

The Supreme Court judgment of 12 November 2014 ran as follows.81 Both European and 
Polish  law  imply  an  obligation  on  the  employer  to  introduce  reasonable  accommodation 

78   Supreme Court, judgment of 12 May 2011 (II PK 276/10). The opinion was formulated as an aside, in the 

last sentence of the judgment since the case was initiated in 2008, before the introduction of the reasonable 
accommodation duty in Poland by the ETA (in force since 1 January 2011). However, the Supreme Court 
ruled in 2011, four months after the change in the law, and it simply decided to point out the new legal 
situation for future reference. 

79   Supreme Court, judgment of 12 April 2012 (II PK 218/11). See: 

https://sip.lex.pl/#/jurisprudence/521407352/1/ii-pk-218-11-zwolnienie-prokuratora-ze-wzgledu-na-jego-
niezdolnosc-do-wykonywania-pracy-wyrok...?cm=RELATIONS.  

80   Supreme Court, judgment of 4 June 2013 (I PK 26/13)., published: LEX nr 1554965, available at: 

https://sip.lex.pl/orzeczenia-i-pisma-urzedowe/orzeczenia-sadow/i-pk-26-13-kompetencja-komisji-bhp-do-
kontroli-521648661. 

81   Supreme Court, judgment of 12 November 2014 (I PK 74/14), published: OSNP 2016/8/101, available at: 
(https://sip.lex.pl/orzeczenia-i-pisma-urzedowe/orzeczenia-sadow/i-pk-74-14-wprowadzanie-racjonalnych-
usprawnien-dla-521661154). 

32 

 
 
 
 
 
 
 
 
for  a  disabled  employee,  as  long  as  it  does  not  constitute  a  disproportionately  high 
burden. It is for the court/judge to assess all the circumstances of a given case.82  

In any case, the concept of accommodation should be interpreted broadly and take into 
account both material and organisational measures.83 

Thus, the termination of an employment contract may be considered justified only if the 
employer  does  not  have  any  reasonable  means  of  enabling  the  disabled  person  to 
continue employment.84 

In this judgment, the Supreme Court was of the opinion that Article 23a of the Disabled 
Persons  Act  should  be  interpreted  in  such  a  way  that  by  adopting  appropriate,  i.e. 
effective  and  practical  measures  to  adapt  the  workplace  to  take  into  account  disability, 
one  should  understand  not  only  the  adaptation  of  premises  or  equipment,  but  also  of 
working time and division of duties. 

As  in  any  case  of  this  type,  it  is  necessary  to  consider  all  possible  changes,  taking  into 
account the rationality of their introduction in terms of the burden put on the employer. 
The  employer’s  failure  to  take  any  actions,  limiting  itself  only  to  the  finding  that  they 
constitute a disproportionate burden, cannot be regarded as fulfilling the obligation under 
Article 23a of the Disabled Persons Act.85 It should also be remembered that it is possible 
for  the  employer  to  obtain  public  funds  for  the  introduction  of  changes  enabling  the 
further employment of a disabled employee. 

c) 

Definition of disability and non-discrimination protection  

As  mentioned  above,  it  seems  that  in  most  cases,  people  with  disabilities  would  be 
identified on the basis of the definition provided by the Disabled Persons Act (three levels 
of disability, which must be confirmed by medical authorities). Theoretically, this could be 
challenged  by  somebody  who  is/feels  disabled  and  does  not  have  this  medical 
confirmation, but since no cases of this kind have been identified, it is difficult to predict 
the  outcome  (even  though  under  both  the  Constitution  and  the  Labour  Code  a  wider 
approach to disability is possible – see Section 2.1.1.). 

This, however, might be also seen as an incorrect implementation of Article 5 of Directive 
2000/78,  ‘by  narrowing  the  definition  of  disability  and  making  it  dependent  on  the 
possession  of  an  appropriate  certificate.’  In  addition,  as  a  consequence,  ‘the  provisions 
on  reasonable  accommodation  also  apply  to  the  narrowed  group  of  persons  with 
disabilities’.86 

d) 

Failure to meet the duty of reasonable accommodation for people with disabilities 

In  Poland,  failure  to  meet  the  duty  of  reasonable  accommodation  in  employment  for 
people with disabilities is recognised as a form of discrimination. 

82   See: Supreme Court, judgment of 12 April 2012, II PK 218/11, item 105. 
83   See: Derlacz-Wawrowska, M, Glosa (gloss) to the judgment of the Court of Justice of April 11, 2013, C-

335/11 and C-337/11, LEX / el 2013.  

84   See: Opinion of the Advocate General in case C-13/05, pp. 81- 82.  
85   See: Latos-Miłkowska, M., ‘Ochrona trwałości stosunku pracy pracowników niepełnosprawnych i opiekunów 

osób niepełnosprawnych’, in Giedrewicz-Niewińska, A. and Szabłowska-Juckiewicz, M. (eds.) (2014), 
Zatrudnianie osób niepełnosprawnych, Warsaw, p. 260.  

86   See  expert  opinion  commissioned  by  the  Office  of  the  Ombud  and  prepared  by  an  expert:  Dr.  M.  Kułak, 
Analiza  poprawności  implementowania  do  polskiego  porządku  prawnego  dyrektyw  Unii  Europejskiej  w 
obszarze równego traktowania, Ekspertyza przygotowana na zlecenie Biura Rzecznika Praw Obywatelskich, 
(Analysis of the correctness of implementation of European Union directives in the field of equal treatment 
into the Polish legal system,), 4 January 2021, pp. 31-32; hereafter referred to as: Kułak, M. (2021). 

33 

 
 
 
 
 
 
 
 
 
 
 
It  is  worth  mentioning  that  failure  to  provide  reasonable  accommodation  results  in 
discrimination  only  in  a  situation  in  which  there  is  a  ‘traditional’  employment  contract 
(covered  by  the  Labour  Code).  Unfortunately,  there  is  no  provision  on  either  duty  and 
discrimination  in  the  case  of  failure,  with  regard  to  other  forms  of  employment  (for 
instance, contracts under civil law).87  

The  failure  to  provide  necessary  reasonable  accommodation  is  deemed  to  infringe  the 
principle of equal treatment in employment within the meaning of Article 18(3a)(2-5) of 
the  Labour  Code88  (which  prohibits  and  defines  direct  discrimination, 
indirect 
discrimination,  harassment  and  instructions  to  discriminate).89  Legislation  and  case  law 
do  not  specify  whether  such  a  failure  amounts  to  direct  or  indirect  discrimination  (or 
another form). 

In  respect  of  sanctions  in  the  field  of  employment,  Article  18(3d)  of  the  Labour  Code 
provides  that  a  person  who  is  subjected  to  discriminatory  treatment  by  an  employer  is 
entitled  to  compensation  not  lower  than  the  level  of  one  month’s  minimum  wage  as 
defined in separate laws (in 2020, a gross salary of PLN 2 600 (EUR 580) per month).  

As mentioned above, the body of jurisprudence  regarding  reasonable  accommodation is 
still small.  

e)  Duties  to  provide  reasonable  accommodation  in  areas  other  than  employment  for 

people with disabilities 

In  Poland,  there  is  no  legal  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities outside the area of employment. 

The  Disabled  Persons  Act  (amended  by  the  ETA)  limits  the  obligation  to  provide 
reasonable accommodation to the employment field. 

However,  there  are  some  developments  in  the  sphere  of  education.  ‘Promotion  of 
reasonable  accommodation  in  education’  was  one  of  the  activities  described  in  the 
National Programme of Activities for Equal Treatment for 2013-2016.90 Various activities 
have  been  undertaken,  such  as  the  provision  of  financial  support  for  students  and  PhD 
students with disabilities.  However, the  Ombud consistently points to  problems with the 
practical  implementation  of  the  right  of  students  with  disabilities  to  inclusive  education, 
which  are  related  to  the  refusal  to  provide  them  with  reasonable  accommodation  in 
mainstream  schools,  and  to  problems  with  transporting  students  with  disabilities  to 
schools and educational institutions or the reimbursement of their parents for the costs of 
this transport.91  

In  2019,  the  Act  on  Education  was  amended  in  part  regarding  the  transport  of  children 
and students with disabilities to schools and institutions.92 During the legislative process, 
the  Ombud  presented  two  opinions  indicating  incomplete  implementation  of  the 

87   This could theoretically be challenged but has not been so far. However, considering the type (and short 

duration) of work that is usually undertaken under civil contracts, most forms of accommodation might 
generally be considered to be ‘unreasonable’.   

88   Disabled Persons Act, 27 August 1997, Article 23a(3). 
89   The 2010 ETA introduced the concept of reasonable accommodation but put it into another act of law – the 

Disabled Persons Act of 27 August 1997. Since the ‘reasonable accommodation’ provision covers 
employment, the Disabled Persons Act refers to the Labour Code and not to the ETA. 

90   Government Plenipotentiary for Equal Treatment (2015) Report on the execution of the National Programme 

of Activities for Equal Treatment for 2014 (Raport z realizacji Krajowego Programu Działań na rzecz 
Równego Traktowania za 2014 r.) Warsaw, p. 95.  

91   Ombud, annual report for 2018, p. 158; Ombud, annual report for 2019, p. 477; Ombud, annual report for 

2020, pp. 410-416.  

92   Act on Education, Article 39a, added by Article 1(3) of the Act amending the Act on Education, 16 October 

2019, in force since 3 December 2019. 

34 

 
 
 
 
 
 
 
 
 
 
resolution  of  the  Constitutional  Tribunal  by  the  draft  provisions.93  In  the  resolution,  the 
Tribunal  had  indicated  that  parents  should  be  reimbursed  for  the  actual  costs  of 
transport.  The  amendment  introduced  an  algorithm  to  calculate  the  amount  due  to  the 
parent, but it includes only the price of fuel and the distance necessary to travel. It does 
not clearly indicate the number of trips a day for which a parent may request a refund.  

f) 

Duties to provide reasonable accommodation in respect of other grounds 

There is no legal duty to provide reasonable accommodation in respect of other grounds 
in the public and the private sector. 

93   Constitutional Tribunal, resolution of 17 October 2017, No. S 1/17 (based on the constitutional complaint – 

resolution of 4 October 2017, No. SK 28/16, see: https://trybunal.gov.pl//s/sk-2816).  

35 

 
 
 
 
 
 
3 

PERSONAL AND MATERIAL SCOPE  

3.1  Personal scope 

3.1.1  EU  and  non-EU  nationals  (Recital  13  and  Article  3(2),  Directive  2000/43 

and Recital 12 and Article 3(2), Directive 2000/78) 

In  Poland,  there  are  no  residence  or  citizenship/nationality  requirements  for  protection 
under the relevant national laws transposing the directives. However, Article 5(9) of the 
ETA  (transposing  the  directives)  provides  that  the  Act  does  not  cover  differences  in 
treatment  based  on  nationality,  especially  in  relation  to  entry  into  and  residence  in 
Poland and in relation to the legal status of natural persons who are citizens of countries 
other than EU Member States, Member States of EFTA or the Swiss Confederation.  

The  2016  amendment  to  the  ETA  added  citizenship  as  a  protected  ground,  but  only  for 
some  categories  of  people.94  This  Act  implements  EU  Directive  2014/54/EU  of  16  April 
2014 on measures facilitating the exercise of rights conferred on workers in the  context 
of  freedom  of  movement  for  workers.  The  amendment  to  the  ETA  adds  one  more 
discrimination  ground  by  stating  in  Article  1(2)  (previously  only  Article  1(1)  listed 
discrimination  grounds)  that  the  ETA  provisions  regarding  nationality  should  adequately 
apply  to  the  citizenship  of  persons  exercising  freedom  of  movement  for  workers  within 
the  scope  defined  in  Articles  1-10  of  Regulation  (EU)  No. 492/2011  of  the  European 
Parliament and of the Council of 5 April 2011 on freedom of movement for workers within 
the European Union.95 

At  the  same  time,  however,  the  provisions  of  the  Labour  Code  apply  in  principle  to  all 
employees and  employers without any distinction on the basis  of nationality, citizenship 
or status.96  

There  is  a  wide  range  of  possible  categories  which  allow  the  individuals  belonging  to 
them to be covered by the provisions of the Labour Code.  

In respect of aliens, in most cases  they are required to obtain a work permit.  However, 
there are several exceptions that relate to citizens of the Member States of the European 
Union  and  other  countries  covered  by  agreements  on  the  free  movement  of  people,  as 
well  as  to  people  who  have  been  granted  different  categories  of  stay  permit,  refugee 
status  or  similar.  Within  these  groups,  no  distinction  as  to  nationality,  citizenship  or 
status is made. The only relevant criterion is the legality of residence on the territory of 
the Republic of Poland. 

94   Act on the amendment of the Act on the Promotion of Employment and the Institutions of the Labour 

Market, Act on the National Labour Inspectorate and Act on the Implementation of Certain Provisions of the 
European Union in the Field of Equal Treatment (Ustawa z dnia 29 kwietnia 2016 r. o zmianie ustawy o 
promocji zatrudnienia i instytucjach rynku pracy, ustawy o Państwowej Inspekcji Pracy oraz ustawy o 
wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania) (Dz.U.2016.691), 29 
April 2016. 

95   This amendment also changed two other Acts. In the Act on the Promotion of Employment and the 

Institutions of the Labour Market, 20 April 2004, as amended, it added (in Article 4(1)(7a)) monitoring, 
analyses and supporting of equal treatment of country nationals from EU and EEA countries exercising 
freedom of movement for workers within the scope defined in Articles 1-10 of Regulation (EU) No. 492/2011 
of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within 
the Union to the competences of the Minister of Labour. In the Act on the National Labour Inspectorate 
(Ustawa z 13 kwietnia 2007 r. o Państwowej Inspekcji Pracy), 13 April 2007, it added new competences to 
the National Labour Inspectorate, including (in Article 10(1)(14a)) providing advice to promote the equal 
treatment of citizens of EU Member States, the European Free Trade Association (EFTA) – parties to the 
Agreement on the European Economic Area that exercise freedom of movement for workers and members 
of their families.  

96   See Labour Code, 26 June 1974, Articles 1-3, which do not include any criteria related to nationality or 

citizenship. 

36 

 
 
 
 
 
 
 
 
 
 
3.1.2  Natural and legal persons (Recital 16 Directive 2000/43) 

a) 

Protection against discrimination  

In Poland, the personal scope of anti-discrimination law covers natural and legal persons 
for the purpose of protection against discrimination.  

Recital  16  was  transposed  into  the  ETA.  Both  natural  and  legal  persons  are  protected 
against  discrimination  (Article  2(1))  but  according  to  Article  10,  protection  for  legal 
persons  extends  only  to  the  grounds  of  the  race,  ethnic  origin  and  nationality  of  their 
members. All forms of discrimination are prohibited.97 

The right to compensation also applies to legal persons (Article 12(2), Article 13) within 
the protection provided in Article 10 (only on the grounds of the race, ethnic origin and 
nationality of their members).  

b) 

Liability for discrimination 

The  personal  scope  of  anti-discrimination  law  covers  natural  and  legal  persons  for  the 
purpose of liability for discrimination.  

With  regard  to  liability,  national  law  (Article  2(1)  of  the  ETA)  does  not  distinguish 
between natural and legal persons.  

3.1.3  Private and public sector including public bodies (Article 3(1)) 

a) 

Protection against discrimination 

The personal scope of national law covers the private and public sectors, including public 
bodies, for the purpose of protection against discrimination. 

National law (Article 2(1) of the ETA) is applicable to both the private and public sectors, 
including public bodies.  

b) 

Liability for discrimination 

The  personal  scope  of  anti-discrimination  law  covers  the  private  and  public  sectors, 
including public bodies, for the purpose of liability for discrimination.  

National law (Article 2(1) of the ETA) is applicable to both the private and public sectors, 
including public bodies.  

3.2  Material scope 

3.2.1  Conditions  for  access  to  employment,  to  self-employment  or  to 
occupation,  including  selection  criteria,  recruitment  conditions  and 
promotion,  whatever  the  branch  of  activity  and  at  all  levels  of  the 
professional hierarchy (Article 3(1)(a))  

In Poland, national legislation prohibits discrimination in relation to conditions for access 
to  employment,  to  self-employment  or  to  occupation,  including  selection  criteria, 
recruitment  conditions  and promotion (with limitations), whatever the branch of activity 
and  at  all  levels  of  the  professional  hierarchy  for  the  five  grounds  (later  in  the  text,  it 
states  that  ‘five  grounds’  refers  to  the  protected  grounds  described  in  the  EU  Equality 
Directives) and in both the private and public sectors as described in the directives. 

97   See also ETA commentary 2017, p. 94. 

37 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The  Labour  Code  sets  out  the  principle  of  equal  treatment  and  the  prohibition  on 
discrimination  and  covers  conditions  for  access  to  employment,  including  selection 
criteria, recruitment conditions and promotion. The same legal regime applies to both the 
public and private sectors. All grounds are covered.98 

The ETA widened the protection and covers (in Article 8) any other form of employment, 
such  as  civil  law  contracts  (i.e.  contract  work),  self-employment,  and  independent 
professions, and it covers all grounds. However, it does not mention promotion. 

Nevertheless, there are certain practical limitations  on the protection of those employed 
under  civil  law  contracts.  The  National  Labour  Inspectorate  may  monitor  the 
implementation  of  labour  law  but  not  the  implementation  of  the  ETA.  The  Ombud  has 
identified this problem and proposed relevant changes to the law.99 In October 2015, the 
Ombud  addressed  the  Prime  Minister,  pointing  out  the  need  to  introduce  protection 
mechanisms  regarding  civil  contracts  and  an  extension  of  the  powers  of  the  Labour 
Inspectorate (the law has not been changed).100  

Labour market institutions, such as employment agencies, are also obliged to behave in a 
non-discriminatory  manner.  According  to  the  Employment  Act,  an  employment  agency 
(and  other  listed  institutions  providing  similar  services)  cannot  discriminate  against 
people  for  whom  it  seeks  employment  or  paid  work  (including  self-employment)  on  the 
grounds  of  gender,  age,  disability,  race,  ethnic  origin,  nationality,  sexual  orientation, 
political opinions, religious beliefs or membership or non-membership of a trade union.101 

In  2018,  irregularities  relating  to  non-compliance  with  the  prohibition  on  discrimination 
were disclosed in audits of 10 employment agencies. In most cases, they concerned job 
offers  containing  illegal  criteria  of  a  discriminatory  nature.  Labour  inspectors  directed 
recommendations  to  the  audited  agencies,  obliging  them  to  remove  irregularities  and 
abandon unfair practices in the future.102 

Similarly,  other  labour  market  institutions,  such  as  employment  services  for  the 
unemployed  and  those  seeking  work,  must  operate  in  a  non-discriminatory  manner  as 
specified  by  the  law.  The  Employment  Act  clearly  determines  that  such  services  should 
be provided free of charge to everyone in accordance with the principle of equality. This 
means  that  they  should  be  provided  irrespective  of  a  person’s  gender,  age,  disability, 
race, ethnic origin, nationality, sexual orientation, political opinions, religious beliefs and 
membership or non-membership of a trade union.103 

Likewise,  employers providing district labour offices with current information concerning 
available jobs cannot formulate any requirements that discriminate against candidates on 
the grounds of gender, age, disability, race, ethnic origin, nationality, sexual orientation, 
political opinions, religious beliefs or membership or non-membership of a trade union.104 

Correspondingly,  district  labour  offices  and  the  centres  for  information  and  career 
planning run by regional voivodeship (województwo) labour offices must dispense career 
advice in accordance with the principle of equality, irrespective of gender, age, disability, 
race,  ethnic  origin,  nationality,  sexual  orientation,  political  opinion  and  religion  or  for 
reasons of trade union membership.105 

98   Labour Code, 26 June 1974, Article 18(3a-3b). 
99   Ombud, annual report for 2014, p. 51.  
100  Ombud, annual report for 2015, p. 39.  
101  Employment Act, 2 April 2004, as amended, Article 19(c). 
102  Ombud, annual report for 2018, pp. 136-137.  
103  Employment Act, 2 April 2004, as amended, Article 36(4)(3). 
104  Employment Act, 2 April 2004, as amended, Article 36(5)(e). 
105  Employment Act, 2 April 2004, as amended, Article 38(2)(3). 

38 

 
 
 
 
 
 
 
 
 
 
The  Ombud  received  complaints  from  people  with  disabilities  regarding  the  specific 
requirement,  as  a  condition  of  employment,  to  include  the  disability  symbol  and  an 
official indication of the specialism of the certifying doctor on certificates of disability. The 
applicants  pointed  out  that  such  regulations  interfere  in  an  unreasonable  and  excessive 
way  with  the  right  of  persons  with  disabilities  to  privacy.  According  to  the  Ombud,  the 
mandatory provision of information to the employer about a specific illness that a worker 
has  may  raise  doubts  in  respect  of  the  constitutional  right  to  privacy,  the  protection  of 
personal  data  and  the  right  to  confidentiality  of  the  patient,  and  consequently  lead  to 
discrimination  against  persons  with  disabilities  in  the  labour  market.  This  type  of  legal 
regulation is a hindrance to finding a job, especially for people with hidden illnesses such 
as  mental  illness,  intellectual  disability  or  epilepsy.  Such  workers  often  do  not  need 
special  adaptations  to  the  workplace  or  working  conditions,  but  common  stereotypes 
associated  with  their  disability  still  result  in  a  reluctance  on  the  part  of  employers  to 
employ them. The certificates should instead indicate the adaptation and facilities needed 
for the person with disabilities in the workplace and in the work process.106 

Finally, the Ordinance of the Minister of Economy, Labour and Social Policy on disclosing 
the  cause  of  disability107  was  found  to  be  unconstitutional  by  the  Polish  Constitutional 
Tribunal.108  The  Tribunal  emphasised  that  the  role  of  the  legislator  is  to  choose  such 
means  that  will  ensure  the  provision  of  support  to  people  with  disabilities  in  the  labour 
market,  while  respecting  their  right  to  privacy  and  taking  into  account  the  interests  of 
employers. 

As a result of the judgment of the Constitutional Tribunal, the bodies that decide on the 
degree  of  disability  lost  the  right  to  insert  the  symbol  ‘02-P’  (for  mental  illness),  along 
with  other  symbols,  in  the  certificate  based  on  their  decision.  In  the  Tribunal’s  opinion, 
such information may be stigmatising.  

3.2.2  Employment  and  working  conditions,  including  pay  and  dismissals 

(Article 3(1)(c)) 

In  Poland,  national  legislation  prohibits  discrimination  in  working  conditions,  including 
pay and dismissals, for all five grounds and in both private and public employment. 

Employment  and  working  conditions,  including  pay  and  dismissals,  are  covered  by  the 
prohibition on discrimination in the Labour Code (Article 18(3a)(1), Article 18(3b)(1).  

The  ETA,  which  widens  protection  and  covers  self-employment  and  civil  law  contracts 
(i.e. contract work), for all grounds, refers to the general prohibition of discrimination in 
the  context  of  work/employment  (including  on  the  basis  of  labour  contracts,  civil 
contracts, self-employment, etc.) but does not mention expressis verbis pay or dismissal 
(Article 8). 

The  Supreme  Court  issued  a  judgment  in  an  interesting  case  relating  to  the  pay  of 
foreign  employees  of  a  company.109  The  Court  decided  that  paying  Korean  employees 
more  for  the  same  work  was  discriminatory.  It  stressed  that  the  need  to  ‘attract’ 
employees  of  Korean  nationality  to  work  in  Korean  companies  operating  in  Poland  was 
vague and impossible to verify objectively, and did not constitute a justified criterion for 

106  Ombud, annual report for 2016, p. 90. 
107  Ordinance of the Minister of Economy, Labour and Social Policy on adjudication on disability and the degree 
of disability (Rozporządzenie Ministra Gospodarki, Pracy i Polityki Społecznej z 15 lipca 2003 r. w sprawie 
orzekania o niepełnosprawności i stopniu niepełnosprawności), 15 July 2003. 
108  Constitutional Tribunal, decision of 19 June 2018, No. SK 19/17, available at: 

http://trybunal.gov.pl/postepowanie-i-orzeczenia/wokanda/art/10142-ujawnianie-przyczyny-
niepelnosprawnosci-w-orzeczeniu-o-stopniu-niepelnosprawnosci/.  
109  Supreme Court, judgment of 22 November 2012, No. I PK 100/12. 

39 

 
 
 
 
 
 
 
 
 
the wage gap between  Korean  employees and  Polish workers who perform the  same  or 
comparable work. 

3.2.3  Access  to  all  types  and  all  levels  of  vocational  guidance,  vocational 
training,  advanced  vocational  training  and  retraining,  including  practical 
work experience (Article 3(1)(b)) 

In  Poland,  national  legislation  prohibits  (only  partially)  discrimination  in  vocational 
training  outside  the  employment  relationship,  such  as  adult  lifelong  learning  courses  or 
vocational training provided by technical schools or universities.  

The Labour Code anti-discrimination provision which covers access to vocational training 
(all  grounds  are  protected)  is  not  very  detailed  and  uses  the  general  term  ‘access  to 
vocational training increasing qualifications’.110 However, taking into consideration labour 
law  as  a  whole,  it  should  be  interpreted  widely  to  cover  all  elements  listed  by  the 
directives. As  relevant  case law is very  limited, it is difficult to assess the interpretation 
of this provision in practice. The Labour Code provisions apply only to training organised 
by the  employer.  Other kinds of training provided outside  employment are governed by 
different laws on education that generally lack clear anti-discrimination clauses in relation 
to different kinds of vocational training (see Section 3.2.7). 

The  ETA,  which  widens  protection  and  covers  self-employment  and  civil  law  contracts 
(i.e.  contract  work),  for  all  grounds,  prohibits  discrimination  in  access  to  vocational 
guidance,  vocational  training,  advanced  vocational  training  and  retraining,  including 
practical work experience (Article 8(1)(1)). 

The Starosta (a local government body) is the public body which initiates, organises and 
finances training for the unemployed to enable them to improve their chances of finding 
employment  or  another  form  of  paid  work  or  to  upgrade  their  vocational  qualifications. 
When  sending  someone  for  training,  the  principle  of  equality  in  access  to  training  must 
be  complied  with,  irrespective  of  gender,  age,  disability,  race,  ethnic  origin,  nationality, 
sexual orientation, political opinion, religion or trade union membership.111 

3.2.4  Membership  of,  and  involvement  in,  an  organisation  of  workers  or 
employers,  or  any  organisation  whose  members  carry  on  a  particular 
profession,  including  the  benefits  provided  for  by  such  organisations 
(Article 3(1)(d)) 

National legislation prohibits discrimination in relation to membership of and involvement 
in  workers’  or  employers’  organisations  as  formulated  in  the  directives,  for  all  five 
grounds and in both private and public employment. 

Freedom  to  establish  and  join  trade  unions  as  well  as  organisations  of  employers  is 
protected by the Constitution (Article 59). 

The  ETA  (Article  8(1)(3))  prohibits  discrimination  in  membership  of  and  involvement  in 
trade unions, organisations of employers or any organisation whose members carry on a 
particular profession, including the benefits provided  for members  of such organisations 
(all grounds are covered).  

110  Labour Code, 26 June 1974, Article 18(3a)(1). 
111  Employment Act, 2 April 2004, as amended, Article 40(6). 

40 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.2.5  Social protection, including social security and healthcare (Article 3(1)(e) 

Directive 2000/43) 

In Poland, national legislation prohibits discrimination in social protection, including social 
security and healthcare, as formulated in the Racial Equality Directive. 

The  ETA  prohibits  discrimination  in  social  protection  (social  housing  is  not  mentioned 
verbatim)112  on  the  grounds  of  gender,  race,  ethnic  origin  or  nationality  (Article  6)  and 
discrimination  in  relation  to  healthcare  on  the  grounds  of  race,  ethnic  origin  and 
nationality (Article 7).  

There  is  also,  as  has  been  mentioned,  the  anti-discrimination  clause  in  the  Social 
Security  Act,  which  is  the  basic  statute  for  the  social  security  field.  Until  2010,  this 
provision  limited  the  principle  of  equal  treatment  of  all  socially  insured  people  to  the 
grounds  of  sex,  marital  status  and  family  status,  but  it  has  been  extended  (as  of  1 
January 2011) to cover the grounds of race, ethnic origin and nationality.113 

The Capital-based Pensions Act114 (Article 2), amended by the ETA (Article 30), prohibits 
discrimination in calculating pension levels on the grounds of gender, race, ethnic origin, 
nationality, state of health, family and marital status.  

The  Medical  Treatment  Act  provides  that,  when  determining  access  to  medical  services 
and to waiting lists in particular (some medical services are not accessible immediately – 
in such cases a person  must sign up to a list and wait for their turn,  which may take a 
few  weeks  or  months),  such  lists  should  be  drawn  up  in  line  with  the  principle  of  just, 
equal,  anti-discriminatory  and  fair  access  to  medical  treatment.115  In  this  way,  the  Act 
prohibits  discrimination,  although  the  specific  grounds  of  racial  or  ethnic  origin  are  not 
mentioned. 

In  2014,  the  Ombud  published  findings  from  its  research  as  part  of  a  series  on  ‘The 
principle of equal treatment – law and practice’, in a document entitled Equal treatment 
of  patients:  non-heterosexual  people  in  the  healthcare  system  –  analysis  and 
recommendations.116 The findings were presented together with recommendations in the 
in  March  2016.117  The  Ombud’s 
Ombud’s  motion  to  the  Minister  of  Health 
recommendations  included:  amendment  of  the  ETA  so  that  compensation  and  redress 
can be claimed in the event of a breach of the principle of equal treatment in the field of 
health care due to sexual orientation; amendment of the Act on Patients’ Rights so that 
any discrimination, including discrimination based on sexual orientation, is considered at 
the same time to be a violation of the patient's rights; the need to take into account the 
specific problems of LGB persons in health programmes and policies – for example, in the 
development  of  programmes  for  the  prevention  of  suicide  among  children  and 
adolescents; the need to disseminate among  medical staff knowledge about the  specific 
treatment  of  LGB  people;  and  the  need  to  raise  the  standards  of  teaching  for  midwives 
and nurses.118 However, the Ombud’s recommendations were not implemented, and the 
ETA was not amended.  

112  However, Article 7 mentions access to publicly offered ‘housing services’ (usługi mieszkaniowe).  
113  Act on the Social Security System (Ustawa z dnia 13 października 1998 r. o systemie ubezpieczeń 

społecznych), 13 October 1998, Article 2a(1), as amended by the Equal Treatment Act, 3 December 2010.  

114  Act on Capital-based Pensions (Ustawa z 21 listopada 2008 r. o emeryturach kapitałowych), 21 November 

2008. 

115  Act on Medical Treatment Financed from Public Resources (Ustawa z 27 sierpnia 2004 r. o świadczeniach 
opieki zdrowotnej finansowanych ze środków publicznych) (Dz.U.2017.1938 t.j.), 27 August 2004, Article 
20(5). 

116  Ombud (2014) Equal treatment of patients: non-heterosexual people in the healthcare system – analysis 
and recommendations (Zasada równego traktowania. Prawo i praktyka. Równe traktowanie pacjentów – 
osoby nieheteroseksualne w opiece zdrowotnej. Analiza i zalecenia), available at: www.rpo.gov.pl. 

117  See Ombud correspondence available at: http://www.sprawy-
generalne.brpo.gov.pl/pdf/2016/3/XI.411.2.2016/692747.pdf. 

118  See: https://oko.press/zboczencow-leczymy-homofobie-transfobie-lekarzy-mozna-leczyc/. 

41 

 
 
 
 
 
 
 
 
An interesting case with regard to the sexual orientation ground was decided in 2016.119 
The claimant challenged the decision of the National Health Fund in  respect of a refusal 
by  the  health  insurance  body  to  provide  cover  to  a  same-sex  spouse  (the  civil 
partnership was concluded abroad, in Scotland) as a member of the claimant’s family.  

In its justification of the judgment, the court of first instance held that, according to the 
provisions  of  the  Act  of  27  August  2004  on  Medical  Treatment  financed  from  Public 
Resources,120  the  circle  of  close  relatives  who  may  be  considered  family  members  is  a 
closed  catalogue.  In  Article  5(3)(b),  the  Law  implies  that  only  a  marital  spouse  is 
considered  to  be  a  family  member.  The  Law  does  not  mention  the  civil  partner  of  the 
insured person. The court of first instance noted that both marriage and partnership are 
national civil-family law institutions, and they are interpreted in the light of the national 
legal  system.  In  the  Polish  legal  system,  there  is  no  regulation  formalising  civil 
partnerships.  The  court  also  referred  to  Article  18  of  the  Constitution,  which  provides 
that:  ‘Marriage,  being  a  union  of  a  man  and  a  woman  […]  shall  be  placed  under  the 
protection and care of the Republic of Poland’.121 The Court also referred to the judgment 
of  the  CJEU  in  Römer,122  finding  that  persons  in  a  life  partnership  may  claim  the  same 
treatment as married spouses only if a registered legal form of life partnership for same-
sex  couples  is  provided  for  by  national  law,  in  parallel  to  marriage  reserved  only  to 
heterosexual couples, and moreover when national law thus shapes the legal situation of 
persons in a life partnership so that it is comparable to the situation of married spouses. 
It found that only the occurrence of such comparability may speak in favour of so-called 
direct  discrimination,  in  this  case  on  the  grounds  of  sexual  orientation.  The  claimant 
appealed  against  the  judgment.  However,  the  Supreme  Administrative  Court  dismissed 
the appeal, agreeing with and repeating large sections of the justification of the court of 
first instance.123  

a) 

Article 3(3) exception (Directive 2000/78) 

National legislation does not rely on the exception in the Directive. 

3.2.6  Social advantages (Article 3(1)(f) Directive 2000/43) 

In Poland, national legislation prohibits discrimination in social advantages, as formulated 
in the Racial Equality Directive. 

The  ETA  prohibits  discrimination  in  social  protection  on  the  grounds  of  gender,  race, 
ethnic  origin  or  nationality  (Article  6).  It  does  not  use  the  term  ‘social  advantages’,  but 
the  definition  of  social  protection  (not  a  legal  definition,  but  a  definition  developed  in 
academic  texts)  traditionally  extends  to  the  issues  relating  to  social  advantages.124  In 
order  to  draw  a  conclusion  from  the  complex  combination  of  provisions  pertaining  to  a 
number of different fields, it may be said that discrimination related to social advantages 
is unlawful. Dr. M. Kułak analyses in detail the meaning and scope of the terms used in 
the Directive and the ETA, pointing out some differences and doubts. However, these are 

119  Supreme Administrative Court (Naczelny Sąd Administracyjny), final judgment of 25 October 2016, No. II 

GSK 866/15, available at: http://www.orzeczenia-nsa.pl/wyrok/ii-gsk-866-
15/sprawy_ubezpieczen_zdrowotnych/33055d0.html).  

120  Act on Medical Treatment financed from Public Resources, 27 August 2004. 
121  Constitution of the Republic of Poland, 2 April 1997, Article 18, available at: 

http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-republic-of-poland/.  

122  Judgment of 10 May 2011, Jürgen Römer v Freie und Hansestadt Hamburg, C-147/08, available at: 

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A62008CJ0147. 

123  Supreme Administrative Court, final judgment of 25 October 2016, No. II GSK 866/15, available at: 

http://www.orzeczenia-nsa.pl/wyrok/ii-gsk-866-15/sprawy_ubezpieczen_zdrowotnych/33055d0.html (see 
more in Section 12.2). 

124  See, for instance, Piotrowski, J. (1966), Zabezpieczenie społeczne. Problematyka i metody, Wydawnictwo 
KiW, Warsaw, p. 28; Rajkiewicz, A. (ed.) (1979) Polityka społeczna, Wydawnictwo PWE, Warsaw, p. 432; 
and the Constitutional Tribunal’s ruling in case No. TK K 17/92.  

42 

 
 
 
 
 
 
 
 
largely  theoretical  considerations  that  have  not  been  reflected 
jurisprudence.125 

in  the  known 

There  is  a  rather  complex  system  of  different  allowances  and  grants.  Most  of  them  are 
not discriminatory, such as a childbirth grant, which is payable to the mother, father or 
legal guardian of a child. It can also be paid to the de facto guardian of a child up to the 
age of one, if it has not been granted to the mother, father or legal guardian.126 

The  death  allowance  is  payable  to  any  person  who  covers  the  costs  of  a  funeral. 127 
However,  a  same-sex  partner,  unlike  a  spouse,  would  have  to  supply  documentary 
evidence of the costs incurred.128 

3.2.7  Education (Article 3(1)(g) Directive 2000/43) 

National  legislation  prohibits  discrimination  in  education  as  formulated  in  the  Racial 
Equality Directive. 

The ETA expressis verbis prohibits discrimination in education and higher education, but 
only  on  the  grounds  of  race,  ethnic  origin  or  nationality  (Article  7).  The  ETA  does  not 
provide  details  regarding  admission,  expulsion,  transfer  and  disciplinary  measures  in 
education;  it  formulates  a  general  prohibition  on  discrimination,  and  therefore  the 
prohibition covers these elements.  

The  authors  of  the  first  commentary  on  the  ETA  pointed  out,  however,  that  the  terms 
used in the Act may narrow down the scope of the protection. The ETA does not use the 
term  ‘education’  in  general;  instead,  it  refers  to  ‘system  of  education’  (oświata)  and 
‘higher  education’  (szkolnictwo  wyższe).  The  potential  problem  is  that  both  terms  are 
defined  in  law  and  refer  specifically  to  listed  types  of  educational  institutions.  Thus, 
discrimination  might  happen  in  an  institution  in  the  system  of  education  or  higher 
education that is not specifically covered by the Act (as in the case detailed below).129 

An  interesting  case  was  decided  by  the  administrative  and  civil  courts  regarding  the 
decision  of  the  dean  of  a  private  vocational  college  (the  College  of  Social  and  Media 
Culture in  Toruń), who, acting pursuant to the Act  on  Higher Education (as was then in 
force) and the statute of the school, decided not to accept M.J. for postgraduate studies 
in  ‘Environmental  protection  –  ecology  and  management’  in  the  academic  year  2016-
2017  (summer  semester).  In  justifying  the  decision,  the  Dean  stated  that,  in  the 
application  process,  M.J.  did  not  attach  a  required  document:  a  priest’s  opinion 
appropriate to the applicant’s place of residence.  

The  Voivodeship  Administrative  Court  rejected  the  complaint  (cassation  was  also 
rejected, and the Court’s ruling became final).130  

The  Court  stated  that  a  substantive  assessment  of  the  decision  must  be  preceded  by  a 
determination of whether the complaint is admissible at all. 

125  Kułak, M. (2021), p. 11-13. 
126  Act on Family Benefits (Ustawa z 28 listopada 2003 r. o świadczeniach rodzinnych), 28 November 2003, 

Article 9. 

127  Act on Retirement and Disability Pensions from the Social Insurance Fund (Ustawa z 17 grudnia 1998 r. o 

emeryturach i rentach z Funduszu Ubezpieczeń Społecznych), 17 December 1998, Article 78(1).  
128  Act on Retirement and Disability Pensions from the Social Insurance Fund, 17 December 1998, Article 

79(1). 

129  ETA commentary 2017, pp. 137-140. 
130  Voivodeship Administrative Court in Bydgoszcz, judgment of 18 October, 2017, No. II SA/Bd 732/17, 

available at: http://orzeczenia.nsa.gov.pl/doc/BC5FC53775; Supreme Administrative Court, judgment of 17 
April 2018, No. II SA/Bd 732/17; https://orzeczenia.nsa.gov.pl/doc/157A08408E. 

43 

 
 
 
 
 
 
 
 
 
 
 
 
The  subject  of  the  complaint  was  a  decision  on  admission  to  postgraduate  studies.  In 
order  to  determine  whether  such  a  decision  is  subject  to  judicial  review  and  therefore 
whether  it  constitutes  an  administrative  decision,  it  was  necessary  to  determine  a)  the 
status of the entity that issued it, and b) the meaning of the Act on Higher Education. 

In respect  of point a), the university/college is  an administrative establishment. It is an 
organisational  unit  that  is  not  a  state  body  or  a  self-governing  body,  but  it  has  been 
established  to  perform  public  tasks  and  is  entitled  to  establish  administrative  and  legal 
relations. 

In  respect  of  point  b),  the  Act  on  Higher  Education,  in  Article  2,  clearly  differentiates 
between two main forms of education: the first one at higher education (Article 2(1)(5)), 
first  degree  (Article  2(1)(7)),  second  degree  (Article  2(1)(8))  or  uniform  master  studies 
(Article  2(1)(9))  and  third-degree  studies  –  doctoral  studies  (Article  2(1)(10)),  and  the 
second one at postgraduate studies.  

The  legislator  also  determined  that:  1)  a  student  is  a  person  studying  at  higher 
education;  2)  a  PhD  student  is  a  participant  in  doctoral  studies;  and  3)  an  attender 
(słuchacz) is a participant in postgraduate studies. 

It means that the organisation of studies that allow an individual to obtain a professional 
or scientific title and,  consequently, its judicial-administrative  control, does not apply to 
postgraduate students. 

The  courses  of  studies  are  subject  to  a  specific  legal  regime  and  state  control,  while 
issues  relating  to  postgraduate  studies  and  students  are  left  to  higher  education 
institutions under the autonomy granted to them. 

In  these  circumstances,  the  controlling  rules  do  not  apply  to  students  in  postgraduate 
studies,  as  they  are  not  students  under  the  meaning  of  the  provisions  of  the  Act  on 
Higher Education, which implies the need to recognise that the decision on enrolment for 
postgraduate  education 
judicial-
administrative control. 

is  not  an  administrative  decision  subject 

to 

The Court noted, as a  de lege ferenda postulate, that it would be advisable to  establish 
the courts’ power to control any acts issued by university bodies that influence the rights 
and obligations of not only students but also postgraduate students. 

Consequently, due to the formal nature of the resolution, which prevents the substantive 
assessment of the contested decision, the Court dismissed the evidence submitted by the 
applicant. 

The  Supreme  Administrative  Court  (with  a  single  judge  sitting  in  a  session  in  camera) 
decided  to  dismiss  the  cassation  complaint.  The  Court  agreed  with  the  court  of  first 
instance  that  the  provisions  determining  the  position  and  character  of  postgraduate 
studies preclude the notion that the decision on the admission or refusal of admission to 
postgraduate studies could be considered a ‘decision’ to which the provisions of the code 
of administrative procedure shall apply accordingly and which is subject to appeal to the 
administrative court. 

The  Court  also  noted  that  the  ECtHR,  in  its  judgment  of  11  March  2014  in  the  case  of 
Howald  Moor  and  others  v.  Switzerland  (No. 52067/10  and  41072/11),  underlined  that, 
according to its case law, the right to go to court is not absolute and may be subject to 
certain  restrictions;  they  are  implicitly  permissible,  as  the  right  to  court  requires  by  its 
very nature to be regulated by a state which has a margin of appreciation in that regard. 

44 

 
 
 
 
 
 
 
 
 
 
 
 
The verdict might be seen as controversial. The Supreme Administrative Court spent a lot 
of time and effort (the justification was 6 000  words long) on proving that admission to 
postgraduate  studies  may  not  be  controlled  by  the  judicial-administrative  control 
procedure. Even given these doubts (which are valid, as there seems to be some sort of 
a  gap  in  the  regulations),  in  the  author’s  opinion  the  court  could  ask  ‘a  constitutional 
question’  of  the  Constitutional  Court  regarding  whether  this  limitation  does  not  breach 
the constitutionally protected right to court.  

The applicant also brought a complaint for compensation to the civil court, based on the 
ETA (the complaint was brought by the Polish Society of Antidiscrimination Law on behalf 
of  the  client).  The  court  of  first  instance  delivered  a  verdict  and  awarded  the  claimant 
PLN 5 000  (EUR 1 200)  plus  PLN 1 167  (EUR 280)  for  the  reimbursement  of  legal 
expenses.131 This ruling is an important one, and not only because the court found that 
there  was  indirect  discrimination  on  the  ground  of  religion/belief.132  It  is  especially 
interesting because the court awarded compensation (as requested by the complainant) 
based  on  the  ETA.  Previously,  courts  had  tended  (in  the  very  few  such  cases  that  were 
brought to justice) to award compensation only for material damage, arguing that, that is 
what the ETA covers. In this case, however, the court argued, quoting European law and 
rulings  by  the  CJEU,133  that  the  compensation  available  under  ETA  also  covers  non-
material  damage,  including  damage  to  the  dignity  of  the  party  (however,  it  still 
underlined  that  the  punitive  element  is  not  included  in  Polish  law).  The  court  did  not 
consider filing for a preliminary reference to the CJEU.  

The ruling of the district court has been appealed by the college in the regional court. The 
Regional  Court,  after  the  meeting  held  in  camera,  dismissed  the  appeal  of  the  college, 
agreed  with  all  the  findings  of  the  first  instance  court  and,  in  addition,  awarded  the 
claimant PLN 450 (EUR 100) as reimbursement of the costs of legal representation in the 
appeal proceedings.134  

Finally,  the  claimant  also  decided  to  file  a  complaint  with  the  ECHR.  It  was  sent  on  9 
November  2018.  In  a  letter  dated  8  January  2019,  the  ECHR  confirmed  receipt  of  the 
complaint and registered it under the number 54711/18. The complaint has not yet been 
communicated to the Polish Government. The applicant alleges in the complaint that the 
Polish  State  has  violated  Article  13  of  the  Convention  and  Articles  13,  14  and  9  in 
conjunction with Article 2 of Protocol 1 to the Convention. 

In general, discrimination in education is prohibited – the 2016 Education Law135 refers in 
its  preamble  to  the  Constitution  as  well  as  to  the  major  international  human  rights 
instruments:  the  Universal  Declaration  of  Human  Rights  (1948),  the  International 
Covenant on Civil and Political Rights (1966) and the UN Convention on the Rights of the 

131  Toruń District Court, judgment of 6 August 2019, No. I C 469/18.  
132  The claimant argued that there had been direct discrimination, but the court stated that: ‘The requirement 

to provide such an opinion is seemingly neutral as it applies to all candidates for studies. In fact, however, it 
is only possible for people who actively participate in the life of the parish to do so, thus excluding both non-
believers and non-Christian believers from the group of people who can study at the university (in fact, all 
non-Christian believers other than the practicing Catholic because – although this was not explicitly 
expressed – given the nature of the university in question, it can be assumed that this was the opinion of 
the parish priest of the Catholic church)’. 

133  Including the following rulings: judgment of 13 February 1985, Francoise Gravier v. the city of Liege, C-

293/83, EU:C:1985:69; judgment of 2 February 1988, Vincent Blaizot v. the University of Liege and others, 
C-24/86, EU:C:1988:43.  

134  Toruń Regional Court (2nd instance), judgment of 21 August 2020, No. VIII Ca 1058/19. See more in 

section 12.2 below.  

135  Act on Education Law (Ustawa z dnia 14 grudnia 2016 r. Prawo oświatowe), 14 December 2016, in force 
since 1 September 2017 (Dz.U.2017.59). This Act partially replaced the previous Act on the Education 
System (Ustawa z dnia 7 września 1991 r. o systemie oświaty) (Dz. U. 2016. poz. 1943, 1954, 1985, 2169), 
7 September 1991. The 1991 Act is still partly in force, in the version published in 2017 (Dz.U.2017.2198 
t.j.). To differentiate between these Acts, in this report they are described as the 1991 Education Act and 
the 2016 Education Law.  

45 

 
 
 
 
 
 
Child (1989). However, the Act has no separate and explicit anti-discrimination provision 
listing protected grounds. 

Similarly,  there  is  no  general  non-discrimination  provision  in  the  legislation  on  higher 
education.  However,  access  to  higher  education  institutions  is  granted  to  foreigners 
based  on  the  international  agreements  and  also  on  the  decisions  of  appropriate  bodies 
(with some exceptions regarding, for instance, tuition).136 

Under the statutes in the field of education, schools must ensure that each pupil has the 
knowledge  and  skills  necessary  for  their  development  and  must  prepare  them  to  fulfil 
family  and  civic  responsibilities  based  on  the  principles  of  solidarity,  democracy, 
tolerance, justice and freedom. According to Article 13 of the 1991 Education Act,137 the 
duties  of  schools  and  public  facilities  include  enabling  pupils  to  uphold  a  sense  of 
national,  ethnic,  linguistic  and  religious  identity,  especially  by  learning  their  own 
language, history and culture. At the request of parents, such teaching may be provided 
in  separate  groups,  sections  or  schools;  in  groups,  sections  or  schools  with  additional 
lessons  on  language,  history  and  culture;  or  in  inter-school  teaching  teams  (Article 
13(2)). 

In their teaching and pastoral work, schools are also obliged to uphold regional cultures 
and  traditions.  The  conditions  for,  and  means  of  realisation  of,  the  above  tasks  are 
described  in  the  special  ordinance.138  The  ordinance  stipulates,  for  instance,  the 
minimum number of pupils required in order to organise education for minorities, and the 
number  of  hours  of  relevant  language  education  or  lessons  on  history,  culture  and 
geography.  

In  order  to  compensate  for  their  higher  operating  costs,  schools  for  national  minorities 
receive an extra 20 % of subsidy in comparison to other schools (and even 150 % in the 
case  of  small  schools);  the  exact  sums  differ  annually.  The  state  budget  also  invests  in 
schools  and  subsidises  the  production  and  publication  of  textbooks.  Furthermore,  the 
Ministry  of  Culture  and  National  Heritage  subsidises  the  minority  press  and  other 
publications and sponsors cultural events organised by national and ethnic minorities.139  

The  Ministry  of  Education  organised  several  activities  within  the  ‘Safe  and  Friendly 
School’  Government  programme  for  2014-2020.140  These  included  training  on  diversity 
and  counteracting  discrimination  (mainly  based  on  ethnic  origin).141  However,  it  is 

136  Act on Higher Education and Science (Ustawa z 20 lipca 2018 r. prawo o szkolnictwie wyższym i nauce) 

(Dz.U.2018.1669), 20 July 2018, Article 323 and following. 

137  As described above, the 1991 Education Act is still partly in force even though the new 2016 Education Law 

entered into force in 2017.  

138  Ordinance of the Minister of National Education on the conditions and means of realisation by nurseries, 

schools and public institutions of public duties in a way which enables the upholding of the national, ethnic 
and linguistic identity of pupils belonging to national and ethnic minorities [...] (Rozporządzenie Ministra 
Edukacji Narodowej z dnia 18 sierpnia 2017 r. w sprawie warunków i sposobu wykonywania przez 
przedszkola, szkoły i placówki publiczne zadań umożliwiających podtrzymywanie poczucia tożsamości 
narodowej, etnicznej i językowej uczniów należących do mniejszości narodowych i etnicznych oraz 
społeczności posługującej się językiem regionalnym), (Dz.U.2017, 1627), 18 August 2017. 

139  Information on particular programmes may be found on the website of the Ministry of Internal Affairs and 
Administration; as far as problems related to these programmes are concerned, please see minutes from 
the meetings of the Joint Committee of the Government and Ethnic and National Minorities, available at: 
https://www.gov.pl/web/mniejszosci-narodowe-i-etniczne/komisja-wspolna. The page dedicated to the 
education strategy is available at: https://www.gov.pl/web/mniejszosci-narodowe-i-etniczne/strategie-
rozwoju-oswiaty.  

140  ‘Safe and Friendly School’ Government programme for 2014-20 (Rządowy program na lata 2014-2020 

„Bezpieczna i przyjazna szkoła”), information available at: https://www.gov.pl/web/edukacja-i-
nauka/bezpieczna-i-przyjazna-szkola.  

141  Government Plenipotentiary for Equal Treatment (2016), Report on the Activities of the Government 

Plenipotentiary for Equal Treatment for the period 1 January 2015 – 31 December 2015 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2015 r. do 31 
grudnia 2015 r.), Warsaw, pp. 113-126; Government Plenipotentiary for Equal Treatment (2017), Report on 
the Activities of the Government Plenipotentiary for Equal Treatment for the period 1 January 2016 – 31 

46 

 
 
 
 
 
 
 
 
difficult to evaluate the impact of these activities, in view of the fact that politicians and 
Government representatives use stigmatising and discriminatory language, including hate 
speech, in their public appearances. In addition, anti-discrimination educational activity is 
currently  under  attack.  For  example,  the  Ordo  Iuris  Institute  has  published  a  report 
detailing 25 CSOs that conduct such activities, warning parents and schools against them 
(Ordo  Iuris  also  had  a  meeting  with  officials  from  the  Ministry  of  Education).  Anti-
discrimination education is presented in the report and in public discourse as harmful and 
dangerous,  and  the  report  recommends  not  allowing  such  organisations  to  enter 
schools.142  

The  Ombud  addressed  the  Ministry  of  Education  regarding  these  issues  (October  2019) 
and  in  response,  the  Minister  of  National  Education  stated  that  anti-discrimination 
education  is  provided  in  Polish  schools  in  a  satisfactory  manner.  In  the  opinion  of  the 
Ombud, this view is not justified.  

In 2020,143 the  Ombud  received  complaints  from parents and teachers concerned about 
written statements delivered by some parents, in which they declared their disagreement 
with  the  participation  of  their  child  in  any  lessons,  activities  or  events  in  which:  ‘the 
programme  relates  in  whole  or  in  part  to  the  issues  of  sexual  education,  […]  equality, 
tolerance,  diversity,  anti-discrimination  and  exclusion,  counteracting  violence,  LGBT, 
homophobia,  gender  identity,  gender’.  The  statement  also  includes  an  obligation  to 
‘notify the relevant state institutions (school superintendents and the Minister of National 
Education)  about  cases  or  attempts  to  organise  such  events  at  school’.144  Due  to  the 
inactivity  of  the  Ministry  and  its  conviction  that  parents  have  such  a  right  (stemming 
from  their  constitutional  right  to  raise  their  children),  with  which  the  Ombud  disagrees, 
the  Ombud  addressed  this  matter  directly  to  schools,  teachers,  and  other  education 
workers, with an open letter on the occasion of National Education Day:  

‘Being  aware  of  the  much-debated  issue  of  extracurricular  school  initiatives  in  the 
context of parents’ right to raise their children according to their own convictions, I 
would like to point out that according to Polish law any parent may exempt his/her 
child  from  activities  not  covered  by  the  core  curriculum.  This  does  not  mean, 
however, that the consent of each parent is  required in order to hold such classes 
or events at school.145 It also does not mean that a parent may exempt a child from 
all  classes  on  equal  treatment  and  anti-discrimination,  as  related  content  is  also 
taught in some compulsory classes.146 Indeed, it is difficult to imagine the smooth 
functioning  of  the  educational  system  in  a  situation  in  which  each  parent  could 
individually challenge all educational and upbringing activities of the school  on the 
basis of his or her own beliefs.’147 

The Ombud consistently takes the position that reliable and universal anti-discrimination 
education  is  necessary  to  ensure  the  safety  and  equal  treatment  of  all  students  in 

December 2016 (Sprawozdanie z działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres 
od 1 stycznia 2016 r. do 31 grudnia 2016 r.), Warsaw, pp. 113-128.  

142  See: https://oko.press/ordo-iuris-men-ostrzegaja-nauczycieli-wpuszczajcie-szkol-organizacji-

pozarzadowych-ktore-ucza-o-prawach-czlowieka/.  

143  Ombud, annual report for 2020, pp. 62-64. 
144  Ombud, annual report for 2020, p. 64.  
145  In accordance with Article 86 of the Education Law Act of 14 December 2016 (Journal of Laws of 2020, item 

910), in order for a school to start cooperation with an external organisation, it is required to obtain a 
positive opinion from the parents’ council by the school director. 

146  The grounds for exemption from participation in classes covered by the core curriculum are set out in Article 

44(d) and Article 44(b) of the Act of 7 September 1991 on the Education System (Journal of Laws of 2020, 
item 1327). 

147  Ombud, open letter to schools, teachers and education staff, 14 October 14 2020 (List otwarty RPO do 

szkół, nauczycielek i nauczycieli, pracowników oświaty z 14 października 2020 r.), available at: 
https://bip.brpo.gov.pl/pl/content/list-otwarty-rpo-do-nauczycieli.  

47 

 
 
 
 
 
 
schools.  In  2020,  the  Ombud  commissioned  a  social  survey  on  equal  treatment  in 
schools; the results will be elaborated and published in 2021.148 

In 2019, the Ombud published an interesting report summarising its activities in respect 
of education: Ombud on schools, pupils, parents and teachers – examples of cases 2015-
2019.149  

During  the  pandemic,  in  the  General  statement  addressed  to  the  Ministry  of  Education, 
the  Ombud  pointed  to  the  difficult  situation  of  children  from  national  and  ethnic 
minorities  and  pupils  with  disabilities.150  The  main  problem,  most  often  reported  to  the 
Ombud, is the lack of computers and equipment for audio-visual communication with the 
teacher.  This  may  concern,  inter  alia,  foreign  children  staying  in  centres  for  persons 
applying for international protection or guarded centres under the Border Guard, run by 
the  Office  for  Foreigners,  and  children  of  Roma  origin,  including  residents  of  Roma 
settlements, who have been facing digital exclusion for years. A frequent problem is also 
the  lack  of  direct  communication  between  teachers  and  parents  resulting  from  the 
language barrier. The Ombudsman recalls that the role of the Ministry of Education is to 
prepare  appropriate  educational  tools  and  materials  available  in  different  languages  to 
enable the education of foreign children and members of national minorities. 

In  view  of  these  challenges,  the  Ombud  asked  the  Ministry  of  Education  whether  an 
evaluation of remote learning is currently being carried out and what the results are. The 
Ombud  also  wants  to  know  whether  additional  resources  will  be  allocated  to  help 
students with special educational needs.  

According  to  the  2016  Education  Law  (Article  39(4)(1)),  every  local  authority  has  the 
duty  to  transport  disabled  pupils  to  schools  free  of  charge  and  to  provide  protection 
during  this  time;  in  cases  where  a  parent  or  guardian  transports  a  child,  the  costs  of 
public transport (for the child and their guardian) should be reimbursed. In practice, this 
provision raises concerns. The Ombud has received complaints from parents of students 
with  disabilities  regarding  problems  connected  with  their  transport  to  schools  and  other 
educational institutions. These difficulties often lead to a situation in which pupils do not 
fulfil  their  schooling  obligations.  In  practice,  the  rules  for  reimbursement  of  transport 
costs  are  often  determined  unilaterally  by  the  local  government  authorities  responsible 
(mayors,  heads  of  city  councils)  and  often  do  not  cover  the  actual  costs  incurred  by 
carers for transporting a child. Parents are reimbursed for transport when accompanying 
a child, but not for travelling without a child (i.e. for two and not four journeys per day). 
The Ombud undertakes relevant actions, advocating for relevant changes of the law and 
advising  parents  on 
receive  adequate 
reimbursement.151 

the  measures 

they  should 

take 

to 

Controversial  changes  were  introduced  in  2017  (entering  into  force  since  1  September 
2017,  the  start  of  the  school  year).  The  Ministry  of  National  Education  limited  the 
possibilities  for  the  integration  of  pupils  with  disabilities  in  schools.152  According  to  the 
amended  law,  individual  teaching  that  is  required  because  of  special  needs  is  to  be 

148  Ombud, annual report for 2020, p. 62.  
149  Ombud (2019), Ombud on schools, pupils, parents and teachers – examples of cases 2015-2019 (RPO w 
sprawie szkół, uczniów, rodziców i nauczycieli. Przykłady spraw z kadencji 2015-2019), available at: 
https://www.rpo.gov.pl/sites/default/files/RPO%20w%20sprawie%20szk%C3%B3%C5%82.pdf.  

150  See: https://www.rpo.gov.pl/pl/content/koronawirus-rpo-pyta-men-czy-prowadzi-ewaluacje-przebiegu-

zdalnej-edukacji-i-jakie-sa-jej-wyniki.  

151  Ombud, annual report for 2017, pp. 48, 528-530; Ombud annual report for 2018, pp. 89-91, 139-140; 

Ombud, annual report for 2020, p. 550. 

152  Ordinance of the Minister of National Education amending the ordinance on the individual obligatory annual 
pre-school preparation of children and individual teaching of children and young people (Rozporządzenie 
Ministra Edukacji Narodowej z dnia 28 sierpnia 2017 r. zmieniające rozporządzenie w sprawie 
indywidualnego obowiązkowego rocznego przygotowania przedszkolnego dzieci i indywidualnego nauczania 
dzieci i młodzieży) (Dz.U.2017.1656), 28 August 2017.  

48 

 
 
 
 
 
 
 
organised at home, not in school. Teachers will go to pupils’ homes and these pupils will, 
therefore,  not  participate  in  integrated  education.  This  amendment  (even  when  still  in 
draft form) provoked numerous protests from parents, CSOs and the Ombud’s Office. It 
is seen as a step back in the introduction of integrated education, and it causes a number 
of  practical  problems  (parents  argue,  for  instance,  that  they  have  to  leave  their  jobs  to 
stay at home with their children).153 The Ombud is monitoring the implementation of this 
law.154 The Minister of Education gave an assurance that the aim of the change was also 
the  inclusion  of  pupils  within  their  peer  group.155  In  addition,  the  Children’s  Rights 
Ombud monitors changes and identified cases of discrimination, including cases in which 
pressure is put on parents to apply for a decision on individual teaching, with an unlawful 
request  on  withdrawing  a  child  from  school.156  No  information  on  possible  court  cases 
stemming from this change in the law is available.  

The  Ombud  has  criticised  provisions  of  the  2016  Educational  Law  (Article  127(13-14)), 
according  to  which  the  staroste  (head  of  poviat,  local  government)  of  the  place  of 
residence,  at  the  parents’  request,  provides  a  child  with  a  special  education  certificate 
with  an  appropriate  form  of  education,  taking  into  account  the  type  of  disability.  This 
means  that  students  with  disabilities  are,  unlike  other  students,  covered  by  the  zoning. 
Institutions  located  further  than  in  the  nearest  poviat  are  in  fact  inaccessible  to  these 
students,  which  presents  a  legal  barrier  and  a  systemic  barrier.  The  Ombud  is  of  the 
opinion that restricting the possibility of choosing a secondary school  near their place of 
residence should be considered as having a discriminatory effect, and thus a violation of 
the  principle  of  equal  access  to  education.  The  Ministry  of  Education  disagrees  with  the 
Ombud.157 

a) 

Trends and patterns regarding Roma pupils 

In  Poland,  there  are  no  specific  patterns  in  education,  such  as  segregation,  regarding 
Roma pupils. 

Although  there  were  still  some  problems  regarding  segregated  school  classes  in  2016, 
these  problems  were  finally  resolved,  and  there  are  currently  no  longer  any  classes  of 
this kind. 

In  the  field  of  education,  the  Polish  Government  has  invested  serious  effort  in 
guaranteeing  full  equality  and  non-discrimination  for  members  of  national  minorities. 
Children of minority  origin have  equal access to all schools  on the same terms as other 
pupils.158 Access to institutions of higher education is also granted equally. 

However,  in  practice,  the  implementation  of  the  right  to  education  in  the  case  of  Roma 
children still raises some concerns. A serious problem for the education of Roma children 
remains  their  inadequate  knowledge  of  the  Polish  language,  in  addition  to  cultural 
barriers,  which  results  in  problems  at  school  from  the  very  beginning  of  their 
education.159 This often leads to failure at school, with problems such as marks that are 
significantly  below  average,  low  attendance  and  pupils  dropping  out  of  school  or 
transferring to special schools for children with learning disabilities.  

153  Ombud, annual report for 2017, pp. 531-532. 
154  See statement of the Ombud to the Minister of Education, 9 September 2019, XI.7036.12.2017, available at 

https://www.rpo.gov.pl/. 

155  Ombud, annual report for 2018, pp. 90-91. 
156  Ombud, annual report for 2018, pp. 137-138. 
157  Ombud, annual report for 2020, p. 416. 
158  2016 Education Law, Article 1; 1991 Education Law, Article 13.  
159  See annual reports on the 2014-2020 Roma programme, available at: 

http://mniejszosci.narodowe.mswia.gov.pl/mne/romowie/program-integracji-spol.  

49 

 
 
 
 
 
 
 
 
 
 
In  2020,  the  Ombud  approached  the  Ministry  of  Education  regarding,  inter  alia,  the 
situation of Roma pupils.160 The main problem, most often reported to the Ombud, is the 
lack of  computers and equipment for audio-visual communication with the teacher.  This 
may concern, inter alia, children of Roma origin, including residents of Roma settlements, 
who have been facing  digital exclusion for years. The  Ombud  reiterated that the role  of 
the  Ministry  of  Education  is  to  prepare  appropriate  educational  tools  and  materials  and 
make them available in different languages. 

The  Ombud  also  appealed  to  local  authorities  to  take  measures  to  reduce  the  epidemic 
risk  in  Roma  settlements  and  ensure  the  implementation  of  the  right  to  education  for 
children. The answers showed that distance learning was introduced in all communes. For 
students who do not have access to the  internet or the necessary equipment, packages 
with tasks in paper form were prepared. Most municipalities also applied to the Ministry 
of  Digitisation  for  additional  funds  for  the  purchase  of  computer  equipment  for  distance 
learning.161 

Finally,  the  Ombud  undertook  an  intervention  in  favour  of  Romanian  Roma  residents  of 
Wrocław,  Gdańsk  and  Poznań,  addressing  the  mayors  of  these  cities.  According  to 
replies,  all  cities  undertook  special  measures.  Due  to  the  lack  of  appropriate  computer 
equipment, the  children could not take full advantage of  online learning, so the support 
of  education  assistants,  who  acted  as  intermediaries  in  contacts  between  children  and 
schools, was secured.162 

In  relation  to  the  Roma  community,  special  programmes  have  been  developed,  such  as 
the Government Roma Programme 2004-2013 and the Programme for the Integration of 
the Roma Community in Poland 2014-2020.163  

The  main  goal  of  the  Roma  programme  was  to  improve  the  integration  of  the  Roma  in 
four  core  fields,  one  of  which  is  education  (including,  as  a  separate  issue,  cultural, 
historical and civic education). Examples of activities regarding education included under 
the Roma programme are as follows (and similar activities are to be continued): 

- 

- 
- 
- 
- 

- 

larger subsidies for schools with Roma pupils (up to 150 % more money per pupil) 
if the school applies (which is not the rule) for different activities; 
including extra classes; 
employing Roma education assistants to assist the teachers of integrated classes;  
employing assistant teachers; 
additional  educational  and  other  activities  for  Roma  children  and  parents, 
psychological and pedagogical advice, organising holidays and camps, material help 
(purchasing school textbooks, etc.); 
special stipends for Roma students.  

In  addition,  the  problem  of  the  over-representation  of  Roma  children  in  special  schools 
has  been  known  about  for  many  years,  and  the  Government  has  promised  to  improve 
the situation.164 In relation to the procedure used for placement in a special school, the 
Minister of Education formulated additional conditions to be fulfilled in order to make sure 
that  placement  in  a  special  school  is  needed  –  previously,  only  a  test  in  the  Polish 
language was used, causing problems for some Roma children.  

160  See: https://www.rpo.gov.pl/pl/content/koronawirus-rpo-pyta-men-czy-prowadzi-ewaluacje-przebiegu-

zdalnej-edukacji-i-jakie-sa-jej-wyniki.  
161  Ombud, annual report for 2020, pp.  92-94. 
162  Ombud, annual report for 2020, pp.  92-94. 
163  Ministry of Internal Affairs and Administration (2014), Programme for the Integration of the Roma 

Community in Poland 2014-2020 (Program integracji społeczności romskiej w Polsce na lata 2014-2020), 
available in English at: http://mniejszosci.narodowe.mswia.gov.pl/mne/romowie/program-integracji-spol.  

164  As a result of many protests by Roma leaders and CSOs, the Ministry of National Education and Sport 

recommended that educational facilities pay greater attention to this problem and ordered verification of the 
decisions to send Roma children to these schools. 

50 

 
 
 
 
 
 
 
 
The  Ombud’s  Office  continues  to  monitor  the  matter.  In  its  annual  reports,  the  Ombud 
recommends counteracting the segregation of Roma pupils in schools and including them 
in mainstream education. The Ombud has called for monitoring of the practice of placing 
Roma children in special schools based on their low level of comprehension of the Polish 
language  (no  reference  to  ECtHR  case  law  has  been  made).165  The  Ombud  has  so  far 
three  times  –  in  2015,  2016  and  2017166  –  addressed  the  Ministry  of  Education  with  a 
request  for  a  compilation  of  current  data  on  the  number  of  children  of  Roma  origin 
admitted to and studying in special schools. The data that the Ombud received from the 
Ministry  shows  that  in  those  three  years,  the  number  of  Roma  children  in  special 
education  was  relatively  small  and  did  not  undergo  significant  changes:  there  were 
between  200  and  220  Roma  children  of  a  total  of  around  2,300  children  of  that 
nationality, in schools or kindergartens.  

CERD,  in  its  2019  report  Concluding  observations  on  the  combined  twenty-second  to 
twenty-fourth  periodic  reports  of  Poland,  noted  the  information  provided  on  measures 
taken  to  improve  the  situation  of  Roma,  including  through  the  Programme  for  the 
Integration of the Roma Community in Poland (2014–2020).167 However, the Committee 
expressed  concern  regarding  the  low  attendance  rates  of  Roma  children  in  primary 
schools,  the  high  rates  of  school  dropout,  their  persistent  overrepresentation  in  special 
schools  and  their  underrepresentation  in  secondary  and  post-secondary  education.  The 
Committee recommended coordination at all levels of government and  engagement with 
Roma communities in the design, implementation and evaluation of inclusion policies and 
action  plans.  The  Committee  also  recommended  the  continuation  of  efforts  to  end  all 
segregation  in  education  faced  by  Roma  children,  and  the  use  of  effective  measures, 
including  special  measures,  to  enhance  rates  of  school  attendance,  including  in 
institutions of higher education, and rates of school completion among Roma children.  

3.2.8  Access  to  and  supply  of  goods  and  services  that  are  available  to  the 

public (Article 3(1)(h) Directive 2000/43) 

In  Poland,  national  legislation  prohibits  discrimination  in  access  to  and  the  supply  of 
goods and services as formulated in the Racial Equality Directive. 

The  2010  Equal  Treatment  Act  expressis  verbis  prohibits  discrimination  in  access  to 
goods  and  services.  The  relevant  provision  (Article  6)  prohibits  unequal  treatment  in 
access  to  services,  including  housing,  goods,  purchasing  rights  and  energy  if  they  are 
offered to the public, on the grounds of sex, race, ethnic origin and nationality.168 Other 
grounds  are  not  covered.  A  failure  to  adapt  goods  or  a  service  to  meet  the  needs  of  a 
person with a disability is not a form of discrimination prohibited in the ETA.  

Until June 2019, there was additional provision regarding refusal of services. Article 138 
of  the  Code  of  Petty  Crimes  provided  as  follows:  ‘Anyone  who,  being  a  professional 
service provider, demands or collects payment higher than that in force, or deliberately 
refuses  to  provide  the  service  without  just  cause,  shall  be  subject  to  a  fine’.  As  a 
consequence  of  a  case  decided  by  Polish  courts  (in  three  instances,  including  the 
Supreme Court) in which the owner of a publishing house who refused to print a banner 
for an LGBT initiative was found guilty, the Prosecutor General/Minister of Justice decided 
to challenge Article 138 before the Constitutional Tribunal. In his motion, he argued that 
the Article rules contrary to the principle of a democratic state of law as expressed in the 

165  Ombud, annual report for 2015, p. 102.  
166  See Ombud annual reports, although in the report covering 2018 there is no information on this issue.  
167  Committee on the Elimination of Racial Discrimination (CERD), Concluding observations on the combined 

twenty-second to twenty-fourth periodic reports of Poland, 24 September 2019, available at: 
https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/POL/CERD_C_POL_CO_22-
24_36935_E.pdf.  

168  See interesting analyses regarding ‘public offer’ and definition of ‘housing’ in the ETA commentary 2017, 

pp. 141-144. 

51 

 
 
 
 
 
 
 
Constitution (Article 2:  ‘The Republic  of Poland shall be a democratic  state  ruled by law 
and implementing the principles of social justice.’).   

The Constitutional Tribunal held (in a majority decision, three to two) that Article 138 was 
unconstitutional. There was no public hearing; only an announcement of the verdict.169  
The Tribunal stated that the legislator's decision to penalise a refusal to provide services 
by ‘a professional service provider’ (even ‘deliberately, without just cause’) is inadequate 
to  meet  the  legislative  objective  under  Article  138  of  the  Code  of  Petty  Crimes,  and 
thereby  violates  Article  2  of  the  Constitution.  In  the  Tribunal’s  view,  doubts  related  in 
particular  to  the  notions  of  ‘being  obliged  to  provide  a  service’  or  ‘unjustified  refusal  to 
provide a service’. The imprecise nature of these concepts may – at the application stage 
–  lead  to  various  interpretations,  including  interpretations  so  broad  that  they  would  not 
be  justified  by  constitutional  principles  and  values.  Doubts  about  the  interpretation  of 
these  concepts  cannot  be  removed  by  way  of  interpretation  in  accordance  with  the 
Constitution and for this reason, the Tribunal was required to intervene. 

Holding  that  Article  138  of  the  Code  of  Petty  Crimes  is  not  in  conformity  with  the 
Constitution means that it ceases to be in force. On the basis of this Article, people have 
in  the  past  been  punished  for  refusing  access  to  goods  and  services  –  for  example,  a 
refusal  to  provide  goods  and  services  to  persons  with  a  disability.  As  a  consequence  of 
the  change,  at  present  victims  of  discrimination  may  seek  the  protection  of  their  rights 
only on the basis of the general principles of civil law. That is possible but difficult, and is 
of a different character – a party has to act by itself, whereas under Article 138 the police 
acted ex officio). 

In  its  reports  to  the  European  Commission,  the  Polish  Government  always  claimed  that 
Article  138  implemented  the  equality  directives  (even  though  the  law  was  passed  for 
different reasons during the communist era). In the opinion of the author, the challenge 
to  this  provision  by  the  Prosecutor  General/Minister  of  Justice  in  the  Constitutional 
Tribunal,  as  well  as  the  Constitutional  Tribunal’s  ruling  (delivered  by  Tribunal  members 
appointed  by  the  current  political  majority  in  a  procedure  that  raises  doubts  as  to  its 
legality)  manifestly  shows  the  attitude  of  Polish  authorities  to  the  issue  of  equal 
treatment. The protection available under the ETA remains limited to certain grounds, as 
described above.  

a)  Distinction between goods and services available publicly or privately 

In  Poland,  national  law  does  not  explicitly  distinguish  between  goods  and  services  that 
are  available  to  the  public  (e.g.  in  shops,  restaurants  and  banks)  and  those  that  are 
available  only privately  (e.g.  restricted to members of a private association) but it does 
specify  that  goods  and  services  ‘offered  to  the  public’  are  covered  by  the  prohibition  of 
discrimination. 

There is no law regulating the operation of private clubs, etc. They do exist (for instance, 
membership  clubs)  but  they  operate  on  the  basis  of  general  legal  provisions  and  use 
their freedom of economic activity to establish their own internal rules.  

3.2.9   Housing (Article 3(1)(h) Directive 2000/43) 

National  legislation  prohibits  discrimination  in  the  area  of  housing,  as  formulated  in  the 
Racial Equality Directive. 

169  Based on the information from the website of the Constitutional Tribunal, available at: 

http://trybunal.gov.pl/postepowanie-i-orzeczenia/komunikaty-prasowe/komunikaty-po/art/10679-odmowa-
swiadczenia-uslugi-ze-wzgledu-na-wolnosc-sumienia-i-religii-uslugodawcy/.  

52 

 
 
 
 
 
 
 
 
 
 
 
The  ETA  expressis  verbis  (Article  6)  prohibits  unequal  treatment  in  access  to  services, 
including  housing,  if  they  are  offered  to  the  public,  on  the  grounds  of  sex,  race,  ethnic 
origin and nationality. The law does not formulate any exceptions.  

According  to  Article  75(1)  of  the  Constitution,  public  authorities  are  obliged  to  establish 
policies  enabling  them  to  meet  the  housing  needs  of  citizens  and,  in  particular,  to 
counteract  homelessness,  support  the  development  of  social  building  projects  and 
support the efforts of citizens to secure their own housing.  

Access  to  housing  is  regulated  by  the  following  legislation:  the  Act  on  Housing 
Allowances170  and  the  Act  on  the  Protection  of  Tenants’  Rights.171  They  contain  no 
provisions of a discriminatory nature.172  

The  actual  situation  in  Poland  as  far  as  housing  is  concerned  cannot  be  taken  to  be 
satisfactory. The housing needs of the population, and its poorer members in particular, 
are  not  being  met.  The  Government  and  local  government  do  not  allocate  adequate 
financial resources to solve housing problems.  

a) 

Trends and patterns regarding housing segregation for Roma 

In  Poland,  there  are  to  some  extent  patterns  of  housing  segregation  and  discrimination 
against the Roma. 

The  situation  for  a  considerable  number  of  Roma  in  terms  of  housing  and  living 
conditions  are  very  poor  (especially  for  Bergitka/Carpathian  Roma).173  According  to  the 
Ombud’s annual reports,  some of the problems faced by the Roma community have for 
many years remained unresolved. The Roma, and especially the Bergitka Roma, still live 
in extreme poverty on the margins of society with no real opportunities to improve their 
living  conditions.  The  possibility  of  using  funds  from  the  Roma  programme  in  Poland 
would not seem to be sufficient. In the opinion of the Ombud, it is necessary to create a 
separate,  comprehensive  new  programme  for  the  Roma  community,  the  aim  of  which 
would  be  solely  the  planning  and  financing  of  improvements  to  housing  and  living 
conditions  for  Roma  settlements  throughout  Poland.  This  could  be  accomplished  by  the 
Roma programme, which includes a section on housing.174 On the basis of on-site visits, 
the  Ombud  has  repeated  these  recommendations  every  year.175  The  Ombud  has 
identified various problems, including municipalities buying houses in other municipalities 
for  Roma  families  and  asking  them  to  move  (without  their  consent,  which  causes  an 
impasse, as they do not want to move).176  

170  Act on Housing Allowances (Ustawa z 21 czerwca 2001 o dodatkach mieszkaniowych), 21 June 2001. 
171  Act on the Protection of Tenants’ Rights, Municipal Housing Resources and Amendments to the Civil Code 
(Ustawa z 21 czerwca 2001 o ochronie praw lokatorów, mieszkaniowym zasobie gminy i zmianie kodeksu 
cywilnego), 21 June 2001. 

172  There was, however, an interesting case which ended up before the ECtHR: Kozak v. Poland, No. 13102/02, 
2 March 2010. Generally speaking, same-sex cohabitants may currently inherit the right to housing (which 
was previously limited) after a partner’s death.  

173  It is hard to estimate the overall number of Bergitka Roma suffering from poor living conditions, since even 
the total number of Roma in Poland varies between different sources of information. According to the 2002 
national census, there were 12 731 Roma, while according to the 2011 census, there were 16 000 (including 
Roma as both the only identity and as one of two identities). Roma organisations sometimes claim that 
there are around 30 000 Roma in Poland, and international sources even give the number as 50 000-
60 000. 

174  Ministry of Internal Affairs and Administration (2014), Programme for the Integration of the Roma 

Community in Poland 2014-2020 (Program integracji społeczności romskiej w Polsce na lata 2014-2020), 
available in English at: http://mniejszosci.narodowe.mswia.gov.pl/mne/romowie/program-integracji-spol. 

175  Ombud, annual report for 2016, pp. 22-24; Ombud, annual report for 2017, pp. 21-23; Ombud, annual 

report for 2018, pp. 26-28, 150-151; Ombud, annual report for 2019, pp. 59-63; Ombud, annual report for 
2020, pp. 92-93  

176  Ombud, annual report for 2015, pp. 17-19, p. 102; Ombud, annual report for 2017, pp. 26-28. 

53 

 
 
 
 
 
 
 
 
 
For  instance,  Limanowa  municipality  decided  to  buy  a  property,  paid  for  with  Roma 
programme  money,  to  provide  housing  for  Roma.  However,  it  deliberately  bought 
property  not  within  its  boundaries  but  in  a  different  municipality  (Czchów),  so  that  the 
Roma  would  have  to  move.  The  Mayor  of  Czchów  issued  a  decree  prohibiting  the 
occupation  of  the  property  bought  by  Limanowa.177  However,  all  the  beneficiaries  had 
earlier  declared  before  a  notary  public  that  they  would  leave  their  current  place  of 
residence.  They  agreed  that  notarial  declarations  might  become  enforcement  orders.178 
At the Ombud’s request, the District Court suspended execution of the orders.179 

In  the  administrative  procedure  joined  by  the  Ombud,  the  Regional  Administrative 
Court180  recognised  the  contested  decree  of  the  Mayor  of  Czchów  as  invalid.181  The 
cassation appeal was dismissed by the Supreme Administrative Court.182 

In  2020,  as  in  previous  years,  the  Ombud  continued  to  work  to  improve  the  living 
conditions  of  the  Roma  community,  especially  in  the  Maszkowice  estate.  Despite  the 
Ombud’s activity, the Łącko commune failed to adopt a comprehensive revitalisation plan 
for the estate. The only reason for this is the resistance of local government authorities, 
which,  according  to  the  Ombud,  is  not  unrelated  to  the  discriminatory  approach  to  the 
local Roma community. 

‘The  Roma  estate  in  Maszkowice,  currently  inhabited  by  about  300  people,  consists  of 
several  dozen  residential  and  farm  buildings  […]  The  standard  of  these  buildings  is 
deteriorating year by year. The inhabitants, left on their own, are unable to improve their 
situation.  Lack  of  education,  as  well  as  systemic  exclusion  from  the  labour  market, 
experienced by a significant part of the Roma community in Poland, make the inhabitants 
of the estate permanent beneficiaries of social assistance. […] However, it is not the lack 
of  money  that  is  the  main  reason  why  the  situation  in  the  estate  in  Maszkowice  is  not 
improving.  Such  funds  exist  thanks  to  the  government's  Program  for  the  integration  of 
the Roma community in Poland. However, the use of these funds depends on the will of 
local  authorities.  Only  a  commune,  if  only  because  of  ownership  issues,  can  carry  out 
construction  investments  on  the  estate.  On  October  19,  2020,  the  Ombud  asked  the 
Deputy Prime Minister, Jarosław Kaczyński, to look at the conditions in which Roma live 
in Maszkowice and to engage in dialogue with the local authorities of the commune.’183 

177  Czchów City Council, Decree No. 12/2016 of 17 February 2016, approved by resolution No. XIII/139/2016 

of 16 March 2016. 

178  Ombud, annual report for 2017, pp. 107-109, 26-28. 
179  Limanowa District Court, judgment of 5 January 2017. 
180  Kraków Regional Administrative Court, judgment of 1 February 2017, No. III SA/Kr 679/16.  
181  Ombud, annual report for 2016, pp. 22-24. 
182  Supreme Administrative Court, judgment of 12 January 2018, Mayor of Czchów v. Governor (with the 

participation of the Ombud), No. I OSK 1633/17, available at: 
http://orzeczenia.nsa.gov.pl/doc/6865F5D82D; see also Ombud, annual report for 2019, pp. 26-28.  

183  Ombud, annual report for 2020, pp. 92-93. 

54 

 
 
 
 
 
4 

EXCEPTIONS 

4.1  Genuine and determining occupational requirements (Article 4) 

In  Poland,  national  legislation  provides  for  an  exception  for  genuine  and  determining 
occupational requirements. 

The ETA (Article 5(6)) introduces an exception as provided in Article 4 of the directives. 
In  fact,  it  is  translated  almost  verbatim  from  the  text  of  the  directives.  The  exception 
covers ‘possibilities and conditions  of undertaking and conducting occupational activities 
as well as training (including higher education)’.  

The  2008  amendment  to  the  Labour  Code184  (Article  18(3b)(2)(1))  had  already  placed 
national  legislation  regarding  employment  based  on  labour  contracts  in  line  with  the 
Directives.  The  notions  of  proportionality,  legitimate  aim  and  genuine  and  determining 
occupational requirements were added. According to the Labour Code, an employer may 
refuse to employ an individual on the basis of one or more grounds listed in the definition 
of  discrimination,  if  the  type  of  work  or  working  conditions  means  that  the  reason  or 
reasons for different treatment are genuine and determining occupational requirements. 
There is no list of those genuine and determining occupational requirements given by the 
law, so it is left to the evaluation of the judge. The test of the proportionality of measures 
and the concept of legitimate aim was also introduced.185 

4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

2000/78) 

National law provides for an exception for employers with an ethos based on religion or 
belief. 

The  ETA  (Article  5(7))  introduces  an  exception  as  provided  in  Article  4(2)  of  the 
Directive. In fact, it is translated almost verbatim from the text of the Directive. It covers 
the limitation of access to and the performance of occupational activities.  

The  ETA  also  amends  the  Labour  Code,  introducing  the  same  exception  in  relation  to 
access to employment.186 

However,  the  provisions  in  both  the  ETA  and  the  Labour  Code  do  not  cover  the  part  of 
Article 4(2) of the Directive which stipulates that the difference in treatment should not 
justify  discrimination  on  another  ground.  In  addition,  as  pointed  out  in  the  first 
Commentary to the ETA, Article 5(7) added two notions to the exception: acting in good 
faith  and  loyalty  towards  the  ethics  of  a  particular  entity  (such  as  a  church  or  religious 
organisation).  According  to  the  authors,  this  may  raise  doubts  as  to  its  conformity  with 
EU law, in that its approach is too wide.187  

− 

Conflicts  between  rights  of  organisations  with  an  ethos  based  on  religion  or  belief 
and other rights to non-discrimination 

In  Poland,  there  is  specific  case  law  relating  to  conflicts  between  the  rights  of 
organisations  with  an  ethos  based  on  religion  or  belief  and  other  rights  to  non-
discrimination in the context of employment. 

184  Act on the amendment of the Act on the Labour Code, 21 November 2008, in force since 18 January 2009. 
185  Labour Code, 26 June 1974, Article 18(3b)(2)(1) (as amended). 
186  Labour Code, 26 June 1974, Article 18(3b)(4), amended by Article 25 of the Equal Treatment Act.  
187  ETA commentary 2017, pp. 157-159. 

55 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
In  an  interesting  case  decided  in  2016  and  mentioned  above,188  YZ  (a  journalist  and 
known media personality) supported a petition  to legalise  civil partnerships, and shortly 
after he lost a civil contract opportunity (as host of a concert organised by the Diocese – 
work  that  he  had  already  performed  in  previous  years).  YZ  sued  the  Roman  Catholic 
Diocese  of  H.  for  compensation  for  infringement  of  the  rule  of  equal  treatment  on  the 
ground  of  sexual  orientation  by  association  (direct  discrimination  and  harassment).  The 
court  of  first  instance189  dismissed  the  lawsuit.  The  court  of  second  instance190  changed 
the  verdict  awarding  compensation.  The  court  stated  that  the  claimant  had  provided 
enough  evidence  to  substantiate  discrimination  and  the  burden  of  proof  was  shifted  to 
the  respondent,  who  did  not  prove  that  there  was  no  breach  of  the  rule  of  equal 
treatment. According to the court, the limitations stemming from Article 5(7) of the ETA 
(the court of first instance referred to these) did not apply. The court concluded that the 
respondent  discriminated  against  the  claimant  –  there  was  indirect  discrimination 
because of political opinion (światopogląd) and not on the ground of sexual orientation.  

4.3  Armed  forces  and  other  specific  occupations  (Article  3(4)  and  Recitals  18 

and 19, Directive 2000/78) 

In Poland, national legislation does not provide for an exception for the armed forces in 
relation to age or disability discrimination (Article 3(4) of Directive 2000/78/EC).  

The  ETA  does  not  refer  to  the  armed  forces,  but  the  armed  forces  are  covered  in  the 
same way as any other employer by the anti-discrimination law.  

The specific legislation relating to employment in some services (the army, police, special 
services,  border  guards,  etc.)  establishes  certain  physical  and  mental  requirements  for 
employment  in  these  services.  These  special  criteria  are  justified  on  account  of  the 
character of the armed services and their duties. 

4.4  Nationality discrimination (Article 3(2)) 

a)  Discrimination on the ground of nationality 

National law includes exceptions relating to difference in treatment based on nationality.  

The ETA includes a provision relying on Article 3(2). Article 5(9) of the ETA provides that 
the  law  does  not  cover  differences  in  treatment  based  on  nationality,  especially  in 
relation  to  entry  into  and  residence  in  Poland,  and  in  relation  to  the  legal  status  of 
natural  persons  who  are  citizens  of  countries  other  than  EU  Member  States,  Member 
States of EFTA or the Swiss Confederation.  

Apart  from  the  specific  provisions  related  to  legal  residence  on  Polish  territory  and  the 
legal  employment  of  foreign  nationals  (see  above,  Section  3.1.1),  there  are  some 
additional  exceptions  in  respect  of  electoral  rights  and  the  obligation  to  do  military 
service, as well as limitations on holding public office. Finally, there are some restrictions 
on  purchasing  real  estate  and  stocks  (foreigners  need  permission  from  the  Minister  of 
Internal Affairs). 

Holding  Polish  citizenship  is  also,  for  instance,  an  obligatory  condition  for  a  number  of 
public posts, including: 

188  See Section 2.1.3. b. The court rulings are public (although not published). However, the claimant asked 

that the case not be publicised; it has therefore been anonymised. 

189  District Court, Polish Society for Anti-Discrimination Law on behalf of YZ v Catholic Diocese of H., judgment 

of 16 December 2016, No. I C 1326/15 (not published).  

190  Regional Court, judgment of 22 March 2017, No. I Ca 75/17 (not published).  

56 

 
 
 
 
 
 
 
 
 
 
 
 
 
- 

- 
- 
- 
- 

- 

- 

in a number of state security agencies, special forces, intelligence services, customs 
services,  the  military  and  the  police,  and  as  firefighters,  prison  guards,  municipal 
police, inspectors of different state inspectorates; 
judge, prosecutor, bailiff, curator; 
detectives, private security guards (but possible for EU and EFTA nationals); 
notary public (but possible for EU and EEA nationals); 
all  civil  servants  (Act  on  the  Civil  Service,  Article  4,  but  with  some  exceptions  in 
accordance  with  Article  5),  public  servants  (Law  on  employees  of  state 
administration, Article 3), employees in municipal administration (Law on municipal 
employees, Article 6, with some exceptions, Article 11(2) and (3)); 
two categories of teachers – appointed and certified (mianowany, dyplomowany) – 
with  the  exception  of  nationals  of  other  EU  and  EFTA  Member  States  (Teachers’ 
Charter, Article 10(5)); 
medical  doctors  (with  a  number  of  exceptions  regarding  other  EU  and  other 
nationals) (Law on doctors, Article 5).  

The 2017’ Act on the Supreme Court and the amendment to the Law on Ordinary Courts 
Organisation introduced a change stating that a candidate for the position of judge, judge 
assessor or lay judge must have exclusively Polish citizenship (dual citizenship of another 
EU  Member  State  also  eliminates  the  candidate).191  The  Ombud  drew  attention  to  this 
issue  of  restricting  access  to  public  service  as  judges,  assessors  and  lay  judges  as  a 
result  of  the  requirement  to  have  only  Polish  citizenship.  In  the  Ombud’s  opinion,  the 
principles  of  access  to  public  service  must  be  objective  in  nature,  enabling  various 
candidates  to  apply  for  such  posts  in  accordance  with  the  principles  of  equal 
opportunities,  without  any  discrimination  or  unjustified  restrictions.  The  Ombud  drew 
attention to the lack of any indication, in the justification to the draft law, of the purpose 
of  the  new  requirement  for  candidates.  Pursuant  to  the  provisions  of  the  Act  on  Polish 
Citizenship, a Polish citizen who simultaneously holds citizenship of another state has the 
same  rights  and  obligations  as  a  person  who  has  only  Polish  citizenship.  According  to 
Article 60 of the Constitution, Polish citizens exercising full public rights have the right to 
equal  access  to  public  service.  The  Ombud  asked  the  Marshal  of  the  Sejm  (the  lower 
house  of  the  Polish  Parliament)  to  take  these  arguments  into  consideration  during  the 
legislative process, but the arguments were not accepted. 

In  Poland,  nationality  (as  in  citizenship)  was  not  explicitly  mentioned  as  a  protected 
ground in national anti-discrimination law until 2016.  

However,  ‘nationality’  (narodowość)  –  understood  as  belonging  to  a  nation  and  not  as 
citizenship of a state – is an explicitly protected ground in the ETA (Articles 1 and 3). 

Discrimination  on the grounds  of citizenship (as such) is not  fully prohibited in the ETA. 
However, since the ETA was amended in 2016, Article 1(2) provides that the regulation 
regarding nationality shall apply accordingly to  citizenship. The 2016  amendment added 
citizenship as a protected ground only for some categories of people.192 It implements EU 
Directive  2014/54/EU  of  16  April  2014  on  measures  facilitating  the  exercise  of  rights 
conferred on workers in the context of freedom of movement for workers. It also adds to 
the ETA one more discrimination ground; the ETA now states at Article 1(2) – previously 
only  Article  1(1)  listed  discrimination  grounds  –  that  its  provisions  regarding  nationality 

191  Act on the Supreme Court (Ustawa z 8 grudnia 2017 o Sądzie Najwyższym), 8 December 2017, Article 
30(1)(1); Law on Ordinary Courts Organisation (Ustawa z dnia 27 lipca 2001r. Prawo o ustroju sądów 
powszechnych), 27 July 2001 (amended on 8 December 2017, in force from 3 April 2018), Article 61(1)(1).  

192  Act on the amendment of the Act on the Promotion of Employment and the Institutions of the Labour 
Market, the Act on the National Labour Inspectorate and the Act on the Implementation of Certain 
Provisions of the European Union in the Field of Equal Treatment (Ustawa z dnia 29 kwietnia 2016 r. o 
zmianie ustawy o promocji zatrudnienia i instytucjach rynku pracy, ustawy o Państwowej Inspekcji Pracy 
oraz ustawy o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania), 29 April 
2016. 

57 

 
 
 
 
 
 
should  be  adequately  applied  to  the  citizenship  of  persons  exercising  freedom  of 
movement  for  workers  within  the  scope  defined  in  Articles  1-10  of  Regulation  (EU) 
No. 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom 
of movement for workers within the European Union.193  

In  its  2019  Concluding  observations  report  on  Poland,  CERD  expressed  its  concern  that 
the  ETA  does  not  explicitly  prohibit  discrimination  on  grounds  of  ‘national  origin’  (also 
‘colour’ and ‘descent’) and recommended relevant amendments.194 

Even  though  there  is  no  general  provision  in  Polish  law  prohibiting  discrimination  based 
on  nationality  (meaning  citizenship),  under  Article  37  of  the  Polish  Constitution  anyone 
who is within the jurisdiction of Poland may exercise the freedoms and rights provided for 
in  the  Constitution.  Article  32(2)  of  the  Constitution  prohibits  discrimination  for  any 
reason  whatsoever  in  political,  social  and  economic  life.  It  is  clear  that  the  grounds  of 
prohibited discrimination include race, skin colour, ethnic origin or belonging to a national 
or ethnic minority, citizenship and stateless status.  

Similarly,  the  anti-discrimination  provisions  of  the  Labour  Code,  Article  11(3),  cover 
everyone,  no  matter  what  their  nationality  (or  stateless  status),  but  the  Code  does  not 
contain the term ‘stateless person’. 

b) 

Relationship between nationality and ‘racial or ethnic origin’ 

Polish law does not provide a definition of racial discrimination, race or ethnic origin (see 
also comments on the Act on National and Ethnic Minorities and on Regional Languages 
in  Section  2.1.1  above).  When  interpreting  what  racial  discrimination  means,  Polish 
courts  may  look  at  the  definitions  contained  in  the  international  treaties,  such  as  the 
International Convention on the Elimination of All Forms of Racial Discrimination.  

There  is  no  relevant  case  law  dealing  with  nationality  and  ethnicity  and  the  possible 
overlap of these two grounds. 

4.5  Health and safety (Article 7(2) Directive 2000/78) 

In  Poland,  there  are  exceptions  in  relation  to  disability  and  health  and  safety  explicitly 
formulated (Article 7(2) of Directive 2000/78/EC). 

The Labour Code  covers the  employment  field and introduces the possibility of different 
treatment  of  people  with  disabilities  (in  order  to  protect  them),  but  does  not  refer 
verbatim to ‘health and safety’ issues (Article 18(3b)(§ 2)(3).  

The ETA does not refer to health and safety.  

193  This amendment also changed two other Acts. In the Act on the Promotion of Employment and the 

Institutions of the Labour Market (Ustawa z 20 kwietnia 2004 o promocji zatrudnienia i instytucjach rynku 
pracy), 20 April 2004, as amended, it added (in Article 4(1)(7a)) monitoring, analyses and supporting of 
equal treatment of country nationals from EU and EEA countries exercising freedom of movement for 
workers within the scope defined in Articles 1-10 of Regulation (EU) No. 492/2011 of the European 
Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union to the 
competences of the Minister of Labour. In the Act on the National Labour Inspectorate (Ustawa z 13 
kwietnia 2007 r. o Państwowej Inspekcji Pracy), 13 April 2007, it added new competences to the National 
Labour Inspectorate, including (in Article 10(1)(14a)) the provision of advice to promote equal treatment of 
citizens of EU Member States and the European Free Trade Association (EFTA) – parties to the Agreement 
on the European Economic Area that exercise freedom of movement for workers and members of their 
families.  

194  CERD, Concluding observations on the combined twenty-second to twenty-fourth periodic reports of Poland, 

24 September 2019, available at: 
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD/C/POL/CO/22
-24&Lang=En. 

58 

 
 
 
 
 
 
 
 
 
 
 
 
 
According to the Constitution, any exceptions to the prohibition on discrimination may be 
justified  only  by  reasons  of  public  security,  public  order,  health,  morality  or  the  rights 
and  freedoms  of  other  people  (Constitution,  Article  31(3)).  This  clause  creates  a  very 
broad scope of guarantee which aims to eliminate any possible discrimination. 

4.6  Exceptions  related  to  discrimination  on  the  ground  of  age  (Article  6 

Directive 2000/78) 

4.6.1  Direct discrimination 

a) 

Exceptions to the prohibition of direct discrimination on grounds of age 

In Poland, national law provides for specific exception(s) for direct discrimination on the 
ground of age. The ETA transposed Article 6, using the same wording as the Directive. 

National  law  permits  differences  in  treatment  based  on  age  for  activities  within  the 
material scope of Directive 2000/78. 

The ETA (Article 5(8)(b)) permits different treatment of natural persons due to age: ‘that 
consists of establishing, for the purposes of social security, different rules for assigning or 
acquiring  the  right  to  benefits,  including  different  age  criteria  for  the  calculation  of  the 
amount of benefits […]’.  

Differences in treatment based on age are also permitted in other legislation, besides the 
ETA, in some situations (see more in the sections below).  

National  anti-discrimination  law  allows  occupational  pension  schemes  to  fix  ages  for 
admission to the scheme or entitlement to benefits, taking up the possibility provided for 
by  Article  6(2).  The  ETA  transposed  Article  6(2)  of  the  Directive.  The  ETA  justifies 
different treatment if the conditions transposed from Article 6(2) are met. In the case of 
employee occupational pension schemes, different treatment is permitted provided that it 
does  not  result  in  discrimination  on  the  grounds  of  sex  (ETA,  Article  5(8)(b),  second 
sentence). 

According to Polish law, individuals (women and men equally) are obliged to contribute to 
pensions  once  they  commence  employment.195  There  are  fixed  ages  for  entitlement  to 
benefits.196  Nevertheless,  some  labour  groups  have  special  preferences,  e.g.  miners, 
teachers, professional soldiers, police officers, etc. 

b) 

Justification of direct discrimination on the ground of age 

In Poland, national law provides for justifications for direct discrimination on the ground 
of  age.  The  ETA  transposed  Article  6,  using  the  same  wording  as  the  Directive.  It  is 
therefore  possible,  in  specified  circumstances,  to  justify  direct  discrimination  on  the 
ground of age.  

The ETA (Article 5(8)(a)), following Article 6 of the Directive, justifies different treatment 
of  natural  persons  because  of  age  ‘if  it  is  objectively  and  reasonably  justified  by  a 
legitimate  aim,  in  particular  by  vocational  training  objectives,  and  if  the  means  of 
achieving that aim are appropriate and necessary’.  

The  Labour  Code  has  also  introduced  (2008  amendment,  Article  18(3b)(2)(4))  one 
exception  –  the  principle  of  equal  treatment  in  employment  is  deemed  not  to  be 

195  Act on the Social Security System, 13 October 1998, Article 6. 
196  Act on Retirement and Disability Pensions from the Social Insurance Fund, 17 December 1998, Articles 24 

and 27. 

59 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
breached  by  actions  of  the  following  kind,  provided  that  they  are  proportionate  to 
achieving a legitimate aim: applying the criterion of length of service in  determining the 
conditions for hiring and firing, pay and promotion rules, and rules on access to training 
for  the  enhancement  of  professional  qualifications,  which  may  indirectly  justify  the 
different treatment of employees based on age. 

The CJEU case of Mangold197 has not so far been directly invoked. It could be used, but 
the particular issue to which it refers was decided in Poland in a different way – in fixed-
term labour contracts, the same protection  exists no matter what the age  of employee. 
There  is  also  no  age  discrimination  in  Polish  law  regarding  a  service-related  statutory 
minimum notice period, as there was in the CJEU Kücükdeveci case.198  

c) 

Permitted differences of treatment based on age 

In  Poland,  national  law  permits  differences  of  treatment  based  on  age  for  any  activities 
within the material scope of Directive 2000/78. 
The ETA (Article 5(8)(b)) permits different treatment of natural persons due to age: ‘that 
consists of establishing, for the purposes of social security, different rules for assigning or 
acquiring  the  right  to  benefits,  including  different  age  criteria  for  the  calculation  of  the 
amount of benefits […]’.  

d) 

Fixing of ages for admission to occupational pension schemes 

In Poland, national law allows occupational pension schemes to fix ages for admission to 
the scheme taking up the possibility provided for by Article 6(2).  

The ETA transposed Article 6(2) of the Directive. The ETA justifies different treatment if 
the  conditions  transposed  from  Article  6(2)  are  met.  In  the  case  of  employee 
occupational  pension  schemes,  different  treatment  is  permitted  provided  that  this  does 
not  result  in  discrimination  on  the  grounds  of  sex  (ETA,  Article  5(8)(b),  second 
sentence). 

According to Polish law, individuals (women and men equally) are obliged to contribute to 
pensions  once  they  commence  employment.199  There  are  fixed  ages  (in  most  cases,  60 
for  women  and  65  for  men)  for  entitlement  to  benefits.200  Nevertheless,  some  labour 
groups have special preferences (lower age limit, earlier pension), e.g. miners, teachers, 
professional soldiers, police officers, etc. 

4.6.2  Special conditions for younger or older workers  

In Poland, there are some special conditions set by law for older and younger workers in 
order to promote their vocational integration.  

According  to  the  Law,201  every  year  the  relevant  ministry  (currently  the  Ministry  of 
Development  and  Technology)  publishes  a  Catalogue  of  Basic  Forms  of  Professional 
Activation.  These  are  labour  market  services  and  instruments  financed  by  the  Labour 
Fund. Catalogues since 2016 are available on the Ministry’s website.202 The catalogue of 
basic forms of professional activation in 2021 includes: internships, training, intervention 
works,  public  works,  refunding  costs  of  equipment  or  additional  equipment  of 

197  Judgment of 22 November 2005, Mangold v. Helm, C-144/04, EU:C:2005:709.  
198  Judgment of 19 January 2010, Kücükdeveci v. Swedex GmbH & Co. KG, C-555/07, EU:C:2010:21. 
199  Act on the Social Security System, 13 October 1998, Article 6. 
200  Act on Retirement and Disability Pensions from the Social Insurance Fund, 17 December 1998, Articles 24 

and 27. 

201  Act on the Promotion of Employment and the Institutions of the Labour Market (Ustawa z 20 kwietnia 2004 

o promocji zatrudnienia i instytucjach rynku pracy), 20 April 2004, as amended, Article 4(11)(1).  

202  See: https://www.gov.pl/web/rozwoj-technologia/katalog-podstawowych-form-aktywizacji-zawodowej.  

60 

 
 
 
 
 
 
 
 
 
 
 
 
workstations, one-off measures to co-finance business start-up, housing allowance. Age, 
usually below 25 and above 50 years  of age, is one  of the conditions  of receiving  these 
kinds of services.  

These  forms  of  professional  activation  are  being  implemented  by  poviat  Labour  Offices. 
For example, poviat Labour Offices may initiate, and finance, intervention works. As part 
of these works, employers employ the unemployed who are in a special situation on  the 
labour market in exchange for a partial refund of remuneration costs and social insurance 
premiums.  The  group  of  the  unemployed  in  a  special  situation  in  the  labour  market 
includes, among others, the unemployed under 25 years of age and the unemployed over 
50  years  of  age.  Similarly,  such  persons  may  be  offered  referral  to  public  works. 
Scholarships  for  studying  at  schools  are  intended  for  the  unemployed  under  25  who  do 
not have professional qualifications. 

4.6.3  Minimum and maximum age requirements 

There are exceptions that permit minimum and maximum age requirements in relation to 
access to employment and training. 

According  to  the  provisions  in  Polish  labour  law,  a  minimum  age  of  18  is,  in  general, 
required  for  engagement  as  an  employee.  There  are  some  exceptions  regarding  minors 
over  15  (employment  of  a  minor  under  15  years  old  is  generally  forbidden,  with  some 
exceptions).203  

Those  who  have  completed  the  first  eight  grades  of  their  school  education204  may 
become  employed  if  they  obtain  medical  approval  for  the  specific  kind  of  work  and  any 
occupational qualifications that may be required for the offered position.  

Those who do not have any vocational training may be employed only for the purposes of 
undertaking this training. 

There  are  age  requirements  in  relation  to  the  status  of  unemployed  people.  This  status 
and the rights that derive from it (unemployment benefit, training, public careers advice, 
etc.) may be obtained only by people between the age of 18 and retirement age. 

There  are  specific  age  limits  concerning  some  parts  of  the  public  sector.  Minimum  age 
limits exist – e.g. within the judiciary. According to the judiciary act, in order to become 
a  judge  in  a  first  instance  court,  a  person  must  be  more  than  29  years  old.205  This  age 
limit is not problematic from the point of view of age discrimination, as it usually takes a 
person  until  the  age  of  29  to  complete  the  whole  course  of  education  and  training  to 
become a judge. Nomination to the courts of second instance requires a certain length of 
practice, and therefore this is an indirect age limit.206 In order to become a judge of the 
Supreme  Court,  a  person  must  be  more  than  40  years  old.207  With  regard  to 
administrative  courts,  there  is  an  age  limit  for  judges  in  regional  administrative  courts, 
who must be 35 or over.208  

203  Labour Code, 26 June 1974, Articles 190, 191 and 202.  
204  Until 2017, general education comprised the following stages: (a) primary/basic education, 7-13 years old; 
(b) lower secondary education (gymnasium), 13-16 years old; (c) upper secondary education (lyceum), 16-
19 years old; and (d) higher education (higher schools, universities, etc.), from 19 years old. In 2017, a 
change was introduced. Gymnasiums were gradually abolished, and general education now comprises two 
levels only: primary school (eight grades) and secondary school (four grades).  

205  Law on Ordinary Courts Organisation, 27 July 2001, Article 61(1)(5). 
206  Law on Ordinary Courts Organisation, 27 July 2001, Articles 63(1) and 64(1). 
207  Act on the Supreme Court, 8 December 2017, Article 30(1)(3). 
208  Law on the Organisation of the Administrative Judiciary (Ustawa z dnia 25 lipca 2002. Prawo o ustroju 

sądów administracyjnych), 25 July 2002, Article 6(1)(5). 

61 

 
 
 
 
 
 
 
 
 
 
 
In order to become a judge of the Supreme Administrative Court, the minimum age is 40 
years,  unless  the  candidate  has  been  a  judge  in  a  regional  administrative  court  for  at 
least three years.209  

The minimum age for becoming a prosecutor is 26.210 Under the Law on Notaries Public, 
one of the conditions of becoming a notary is to be at least 26.211 

The Ombud pays special attention to the problem of age limits. For instance, according to 
the  Act  on  Degrees  and  Academic  Titles,  candidates  for  membership  of  the  Central 
Commission for Degrees and Titles could not be over 70 years of age.212 According to the 
Ministry  of  Science  and  Higher  Education,  the  age  restriction  was  not  discriminatory. 
However, the Ombud considered that the total exclusion of persons over 70 years of age 
from  the  Commission  may  be  discriminatory  and  addressed  the  Minister  of  Science  and 
Higher  Education  with  a  request  to  consider  taking  legislative  measures  aimed  at 
removing the age limit in the indicated scope.  

In  response,  the  Minister  noted  that  ‘in  the  assessment  of  the  Court  of  Justice  of  the 
European  Union  it  is  acceptable  –  from  the  point  of  view  of  equal  treatment  in 
employment  –  to  introduce  regulations  according  to  which  university  professors  are 
compulsorily retired at the age of 68, while continuing their activities after the age of 65 
is only possible on the basis of fixed-term contracts, as long as these provisions pursue a 
legitimate aim, in particular in the field of employment and labour market policies, such 
as  the  implementation  of  high-quality  teaching  and  the  optimal  intergenerational 
distribution  of  professorships,  and  provided  that  these  provisions  allow  this  objective  to 
be  achieved  by  appropriate  and  necessary  means.  The  solutions  applied  in  the  Act  on 
Higher Education and Science were analogical in character and purpose, and therefore – 
in  the  opinion  of  the  Minister  –  doubts  as  to  their  admissibility  are  not  founded.’213 
Therefore, the new law that replaced the Central Commission for Degrees and Titles with 
the  Council  of  Scientific  Excellency  kept  the  same  provision  and  age  limit  (candidates 
cannot be over 70 years of age).214 

In the opinion of the Ombud, the provision in the 2010 Act on the Principles of Financing 
Science that formulated the legal definition of a ‘young scientist’ was discriminatory due 
to the age criterion of 35 years. The Ombud addressed the Minister of Science and Higher 
Education,  who  promised  that  the  Act  on  Higher  Education  and  Science  (in  force  from 
October  2018)  would  change  the  definition.  The  new  definition  (Article  360)  indicates 
that ‘A young scientist is a scientist who is a PhD student and does not have a doctoral 
degree, or has a doctoral degree, obtained not earlier than 7 years ago.’215 

4.6.4  Retirement  

a) 

State pension age 

In Poland, there is no  state pension age at which individuals must begin to collect their 
state pensions but there is a state pension age at which individuals may begin to collect 
their state pensions (60 for women and 65 for men).  

209  Law on the Organisation of the Administrative Judiciary, 25 July 2002, Article 7(1). 
210  Act on Public Prosecution (Ustawa z dnia 28 stycznia 2016 r. o prokuraturze), 28 January 2016, Article 

75(1)(5).  

211  Law on Notaries Public (Ustawa z dnia 14 lutego 1991 r. Prawo o notariacie), 14 February 1991, Article 

11(7). 

212  Act on Degrees and Academic Titles and Degrees and Titles in the Field of Art (Ustawa z 14 marca 2003 r. o 
stopniach naukowych i tytule naukowym oraz o stopniach i tytule w zakresie sztuki), 14 March 2003, Article 
34a –now repealed.  

213  Ombud, annual report for 2018, pp. 60-61. 
214  Act on Higher Education and Science, Article 233(1)(5).  
215  Ombud, annual report for 2018, pp. 61-63. 

62 

 
 
 
 
 
 
 
 
 
 
If  an  individual  wishes  to  work  beyond  the  state  pension  age,  the  pension  can  be 
deferred.  

An individual can collect a pension and still work. 

It  is  possible,  as  a  rule,  for  people  who  have  reached  normal  pension  age  to  combine 
employment  with  receipt  of  a  pension.  However,  there  is  an  exception  to  this  rule:  if 
people of pension age do not terminate their employment contract and continue to work 
for  the  same  employer  (this  applies  equally  to  women  and  men),  payment  of  their 
pension is suspended.216 There are many cases regarding this provision, but it is part of 
the  legal  system  and  it  has  passed  the  constitutionality  test  (with  one  exception  –  the 
Constitutional  Tribunal  held  that  the  provision  may  not  apply  retrospectively  to  persons 
who already collect a pension, and applies only in future).  

There is no requirement for employees to retire when they reach pension age. Until the 
end of 2012, the general pension age was 60 for women and 65 for men. In May 2012, 
however, the pension age was changed by Parliament. The normal pension age for both 
men  and  women  was  set  at  67  (to  be  introduced  incrementally  –  for  men  by  2020  and 
for  women  by  2040).217  Under  legislation  passed  in  2016  (in  force  since  October  2017) 
the previous pension age (60 for women and 65 for men) has been restored as a result 
of political promises in the parliamentary election campaign.218  

The pension age is treated as a right, not as an obligation, and it is left to the discretion 
of  the  employee  whether  to  collect  their  pension.219  On  the  one  hand,  only  employees 
themselves can apply to the social security agency to be issued with a decision granting a 
pension.  On  the  other  hand,  entitlement  to  a  retirement  pension  is  not  subject  to 
resignation from employment. 

For  many  years  this  was  not  obvious,  as  the  jurisprudence  of  the  courts,  including  the 
Supreme  Court,  varied  among  cases  in  which  reaching  the  retirement  age  and 
entitlement to a pension were the reasons for the termination of a labour contract. In a 
number  of  cases,  the  Supreme  Court  adopted  different  decisions.  Finally,  in  2009,  the 
Supreme  Court,220  in  a  special  procedure,  answered  a  ‘legal  question’  lodged  by  the 
Ombud  (this  special  procedure  may  be  initiated  by  the  Ombud  in  situations  where 
differences exist in the interpretation of the law in court judgments; the legal question is 
not based on any particular case). The resolution (ruling) was passed by a special panel 
of seven judges.  

The Court answered the question: ‘Whether reaching retirement age and entitlement to a 
pension  may  be  the  sole  reason  for  the  termination  of  a  labour  contract  with  an 
employee  –  a  woman  or  a  man  –  and  whether  this  implies  discrimination  against  an 
employee based on sex and age (Article 11(3) of the Labour Code)’. The Supreme Court 
adopted the following resolution: ‘Reaching retirement age and entitlement to a pension 
may  not  be  the  sole  cause  of  termination  of  a  contract  of  employment  by  an  employer 
(Article  45(1)  Labour  Code)’.  In  the  justification,  the  Supreme  Court  stressed  that  the 
termination of the employment of an employee – a woman or a man – just because they 
have  reached  a  certain  retirement  age  and  are  entitled  to  a  pension  constitutes 
discrimination:  indirect  discrimination  on  the  ground  of  gender  (in  the  case  of  a  female 

216  Act on Retirement and Disability Pensions from the Social Insurance Fund, 17 December 1998, Article 103a.  
217  Act on Retirement and Disability Pensions from the Social Insurance Fund, 17 December 1998, Articles 24 

and 27 (amended 11 May 2012, in force since 1 January 2013). 

218  Act on Retirement and Disability Pensions from the Social Insurance Fund, 17 December 1998, Articles 24 

and 27 (amended 16 November 2016, in force since 1 October 2017). 

219  Act on Retirement and Disability Pensions from the Social Insurance Fund, 17 December 1998, Articles 24 

and 27. 

220  Supreme Court, resolution of 21 January 2009, No. II PZP13/08. 

63 

 
 
 
 
 
 
 
 
employee,  as  the  retirement  age  for  women  is  lower)  and  direct  discrimination  on  the 
ground of age (in the case of female and male employees). 

Another  interesting  case  was  decided  by  the  Constitutional  Tribunal,  which  answered  a 
legal question formulated by the Łódź Regional Court:221 whether Article 29(1) of the Act 
of  17  December  1998  on  Retirement  and  Disability  Pensions  from  the  Social  Insurance 
Fund  violates  the  constitutional  rules  of  equality  in  law  and  the  prohibition  on 
discrimination  (Articles  32  and  33).  The  law  that  was  challenged  made  a  distinction 
between the situation of men and women in terms of the right to ‘early retirement’. The 
normal  retirement  age  was  60  for  women  and  65  for  men.  However,  women  were 
entitled to ‘early retirement’ at the age of 55 if they had at least 30 years of paid pension 
insurance, while men in a similar situation (35 years of insurance payments and 60 years 
of  age)  were  not  entitled  to  early  retirement.  The  Constitutional  Tribunal  found  the  law 
on  pensions  to  be  discriminatory.  Following  the  verdict,  the  law  was  changed.  The  case 
was considered as a matter of sex discrimination, although the issue might also be seen 
as age discrimination concerning the age difference for men and women in granting them 
particular rights to retirement. This case referred to ‘early retirement’.222  

b)  Occupational pension schemes 

In Poland, there is no standard age at which people can begin to receive payments from 
occupational pension schemes and other employer-funded pension arrangements.  

If  an  individual  wishes  to  work  for  longer,  payments  from  such  occupational  pension 
schemes cannot be deferred. An individual can collect a pension and still work. 

The  rules  that  apply  to  payments  from  the  Employees’  Pension  Programmes  system, 
which  is  a  system  of  voluntary  collection  of  pension  contributions,  are  rather  specific. 
Individuals  begin  receiving  payments  in  the  following  cases:  1)  upon  a  decision  by  the 
individuals once they reach the age of 60; 2) upon presentation of a decision granting the 
right  to  a  state  pension  when  the  individual  reaches  the  age  of  55;  and  3)  when  the 
individual reaches the age of 70, under two conditions: if the individual has not applied to 
receive  payments  and  if  their  employment  has  been  terminated  (if  the  individual 
continues to work for the same employer, the pension is suspended).223 

c) 

State imposed mandatory retirement ages 

Poland has no state-imposed mandatory retirement age(s).  

There  is  neither  a  specific  regulation  allowing  employers  to  terminate  an  employment 
contract  on  account  of  an  employee  reaching  retirement  age  nor  mandatory  retirement 
ages  for  any  sector,  with  the  exception  of  judges,224  public  prosecutors,225  court 
enforcement officers226 and notaries public.227  

There are relevant cases that should be mentioned in this context.  

221  Łódź Regional Court, judgment of 23 October 2007, Marek R. v Zakład Ubezpieczeń Społecznych, No. P 

10/07. 

222  As mentioned in point c) below, the 2016 reversion to 60 and 65 years for females and males respectively 
went against previous verdicts. It is clear that the re-establishment of different mandatory retirement ages 
for female and male judges has a discriminatory character. 

223  Act on Employees’ Pension Programmes (Ustawa z 20 kwietnia 2004 r. o pracowniczych programach 

emerytalnych), 20 April 2004, Article 42(1) and (2). 

224  Law on Ordinary Courts Organisation, 27 July 2001, Article 69(1) and (3). 
225  Act on Public Prosecution, 28 January 2016, Article 127. 
226  Act on Court Bailiffs (Ustawa z dnia 22 marca 2018 r. o komornikach sądowych), 22 March 2018, Article 

19.1(2).  

227  Law on Notaries Public, 14 February 1991, Article 16(1)(2a). 

64 

 
 
 
 
 
 
 
 
 
 
 
 
An  interesting  problem  arose  in  2012  (initiated  by  a  complaint  from  an  affected  party) 
that  engaged  both  the  Ombud  and  the  Plenipotentiary  for  Equal  Treatment.  The  Act  on 
Pharmaceutical  Law  limited  the  possibility  of  being  a  manager  of  a  pharmacy  to  those 
who  are  aged  below  65  or  70  (if  extended  using  the  special  procedure).  This  provision 
was  criticised  as  discriminatory  by  the  Ombud  and  the  Plenipotentiary  in  their 
representations to the Minister of Health. The process of amendment of the law relating 
to retirement took place at the same time, and the questionable provision was changed 
with effect from 1 January 2013.228  

In  2013,  the  Supreme  Administrative  Court  delivered  a  judgment229  regarding  the 
retirement age of court bailiffs (judicial enforcement officer – komornik sądowy).230 Until 
2013, under the Act on Court Bailiffs and Enforcement (Article 15a(1)(3a)), the Minister 
of  Justice  could  dismiss  bailiffs  when  they  turned  65;  the  age  for  dismissal  was  later 
changed  to  70,  but  since  2019  it  has  returned  to  65.  A  dismissal  by  the  Minister  was 
challenged  by  a  dismissed  bailiff  before  a  Regional  Administrative  Court,  which  upheld 
the  Minister’s  decision.  The  Supreme  Administrative  Court  considered  the  cassation 
appeal against this verdict. In the opinion of the Court, the interpretation of Article 15a of 
the  Act  required  from  the  Minister  of  Justice,  in  the  absence  of  appropriate  legislative 
action, direct application of the provisions of Directive 2000/78/EC – in particular, Article 
2(2). The Court found the decision of the Minister of Justice to be discriminatory on the 
ground of age.  

In  2014,  the  Ombud  continued  its  efforts  to  challenge  certain  upper  age  limits.  It 
objected  to  the  change  in  the  age  limit  for  bailiffs  (as  a  result  of  the  case  mentioned 
above, the law was amended, and the age limit was changed from 65 to 70 years).231 In 
the  opinion  of  the  Ombud,  the  law  still  failed  to  comply  with  Directive  2000/78/EC,  as 
well  as  with  the  Constitution,  as  the  change  was  introduced  without  being  properly 
substantiated.232  In  2015,  the  opinion  of  the  Ombud  was  supported  by  the  bailiffs’  self-
regulatory body, the National Council of Bailiffs (Krajowa Rada Komornicza).233 However, 
the  Minister  of  Justice  took  a  different  view,  stating  that,  in  his  opinion,  there  was  no 
need to work on revising the regulation according to which, after reaching the age of 70, 
a  bailiff  is  dismissed  from  office  by  the  Minister  of  Justice.  He  stated  that  the  current 
regulation  does  not  infringe  EU  law  or  the  Constitution,  and  it  is  essential  in  order  to 
ensure that the rights of all parties to enforcement proceedings are respected, as well as 
to safeguard the interests of the Treasury.234  

In 2015, an interesting case was decided by the Supreme Court.235 A prosecutor who had 
reached  the  age  of  65  sought  the  consent  of  the  Prosecutor-General  to  continue  in 
employment.  She  was  refused  and  challenged  the  refusal  in  court.  The  Supreme  Court 
stated that generational change is a criterion that the Prosecutor-General may take into 
account.236  

228  Ombud, annual report for 2012, pp. 394-395; Government Plenipotentiary for Equal Treatment (2013), 
Report on the Activities of the Government Plenipotentiary for Equal Treatment for the period 1 January 
2012 – 31 December 2012 (Sprawozdanie z działalności Pełnomocnika Rządu do spraw Równego 
Traktowania za okres od 1 stycznia 2012 r. do 31 grudnia 2012 r.), Warsaw, pp. 65-66; Act on 
Pharmaceutical Law (Ustawa z dnia 6 września 2001 r. Prawo farmaceutyczne), 6 September 2001 (as 
amended in 2012), Article 88.  

229  Supreme Administrative Court, judgment of 9 July 2013, R.C. v Minister of Justice, No. II GSK 391/12.  
230  Ombud, annual report for 2013, pp. 72-73. Act on Court Bailiffs and Enforcement, 29 August 1997.  
231  However, in the new law on bailiffs, the age was restored to 65 – see: Act on Court Bailiffs (Ustawa z dnia 

22 marca 2018 r. o komornikach sądowych), 22 March 2018, Article 19.1(2).  

232  Ombud, annual report for 2014, pp. 22-23.  
233  Ombud, annual report for 2015, p. 38.  
234  Ombud, annual report for 2014, p. 23.  
235  Supreme Court, judgment of 16 July 2015, XY v. Prosecutor General, No. III PO 6/15, available at: 

https://www.saos.org.pl/judgments/243008. 

236  Supreme Court, judgment of 16 July 2015, XY v. Prosecutor General, No. III PO 6/15, available at: 
https://www.saos.org.pl/judgments/243008. The Supreme Court ruled that a properly conducted 
‘generational replacement’ is an acceptable premise, also recognised in the jurisprudence of the CJEU 
(judgments in C-159/10 and C-160/10). The Supreme Court stated: ‘Settled case law of the Supreme Court 

65 

 
 
 
 
 
 
As  already  mentioned  above,  in  2016  the  previous  general  pension  age  (60  for  women 
and  65  for  men)  was  restored,  coming  into  force  in  October  2017.237  This  also  led  to 
changes in the mandatory retirement age for some specific professions, including judges 
and  prosecutors,  and  has  affected  not  only  future  judges  but  also  judges  in  service.238 
The  change  also  raised  questions  regarding  discrimination.  It  is  clear  that  the  re-
establishment of different mandatory retirement ages for female and male judges has a 
discriminatory character.  

The  change  drew  a  firm  reaction  from  the  European  Commission.  The  Commission 
concluded  on  20  December  2017  that  there  was  a  clear  risk  of  a  serious  breach  of  the 
rule  of  law  in  Poland.  It  therefore  decided  to  take  the  next  step  in  its  infringement 
procedure  against  Poland  for  breaches  of  EU  law  by  the  Law  on  Ordinary  Courts 
Organisation.  The  Commission  recommended  that  the  Polish  authorities:  ‘remove  the 
new  retirement  regime  for  judges  including  the  discretionary  powers  of  the  Minister  of 
Justice  to  prolong  the  mandate  of  judges  and  to  appoint  and  dismiss  presidents  of 
courts” ’ and that they: ‘Amend the Supreme Court law, not apply a lowered retirement 
age  to  current  judges,  remove  the  discretionary  power  of  the  President  to  prolong  the 
mandate of Supreme Court judges […]’.239 

According to the press release, ‘The Commission's key legal concern identified in this law 
related to the discrimination on the basis of gender due to the introduction of a different 
retirement age for female judges (60 years) and male judges (65 years)’.240 

The Polish legislator changed controversial provisions. Nevertheless, the CJEU concluded 
that,  despite  the  amendment  of  the  Supreme  Court  Act  (21  November  2018),  it  is  not 
certain whether this Law eliminates all the alleged violations of EU law.241  

d) 

Retirement ages imposed by employers 

In  Poland,  national  law  does  not  permit  employers  to  set  retirement  ages  (or  ages  at 
which  the  termination  of  an  employment  contract  is  possible)  by  contract  and/or 
collective bargaining and/or unilaterally.  

e) 

Employment rights applicable to all workers irrespective of age 

The  law  on  protection  against  dismissal  and  other  laws  protecting  employment  rights 
apply  to  all  workers  irrespective  of  age,  even  if  they  remain  in  employment  after 
attaining pensionable age or any other age.  

The employer can terminate employment only on the basis of general rules governing the 
termination of labour relations. 

is the position according to which the generational replacement of prosecutors is the premise that the 
Attorney General may consider in deciding on a prosecutor's application for consent to continue to hold the 
post. The Supreme Court cannot interfere with the statutory powers of the Attorney General and assess 
whether the person concerned should continue to perform its function as prosecutor. The Supreme Court 
only examines whether the decision of the Attorney General is not arbitrary or taken using prohibited 
criteria’. See also Ombud, annual report for 2016, pp. 77-78. 

237  Act on Retirement and Disability Pensions from the Social Insurance Fund, 17 December 1998, Articles 24 

and 27, (amended 16 November 2016, in force since 1 October 2017). 

238  According to the European Commission: ‘Over a period of two years, the Polish authorities have adopted 

more than 13 laws affecting the entire structure of the justice system in Poland, impacting the 
Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution 
service and National School of Judiciary. The common pattern is that the executive and legislative branches 
have been systematically enabled to politically interfere in the composition, powers, administration and 
functioning of the judicial branch’. See information at: http://europa.eu/rapid/press-release_IP-17-
5367_en.htm. 

239  See: http://europa.eu/rapid/press-release_IP-17-5367_en.htm.  
240  See: http://europa.eu/rapid/press-release_IP-17-5367_en.htm. 
241  The ruling of the CJEU was delivered on 24 June 2019.  

66 

 
 
 
 
 
 
 
 
 
 
The  law  protects  all  employees  irrespective  of  age  (with  the  exception  described  below, 
which  is  aimed  protecting  people  close  to  pensionable  age).  According  to  the  2009 
resolution  of  the  Supreme  Court  mentioned  above,  reaching  pensionable  age  cannot  be 
the sole reason for dismissal – this would be discrimination. However, if there is another 
reason behind the need for dismissal (for instance, reductions in staff), it is acceptable to 
dismiss people who have the right to a pension. 

In  addition,  employees  are  protected  against  dismissal  in  the  four  years  before  they 
reach pensionable age, if the period for which they have been employed gives them the 
right  to  a  retirement  pension  on  reaching  pensionable  age.242  No  distinction  is  made 
between women and men in this respect. 

In practice, of course,  many problems occur, some of which eventually end up in court. 
Employees  quite  often  feel  that  they  are  being  put  under  pressure  to  resign  from  their 
job  when  they  reach  pensionable  age,  or  that  they  are  supposedly  being  dismissed  for 
reasons other than reaching pensionable age (but in fact the sole reason is their age). It 
is  probable  that  many  of  them  do  not  challenge  their  employers  due  to  a  lack  of  legal 
awareness, but the Supreme Court rulings, and their publication, are no doubt helping to 
raise awareness. 

f) 

Compliance of national law with CJEU case law 

National  legislation  is  in  line  with  the  CJEU  case  law  on  age  regarding  mandatory 
retirement (please note the issues concerning retirement from judicial office, mentioned 
above).  

4.6.5  Redundancy 

a) 

Age and seniority taken into account for redundancy selection 

In  Poland,  national  law  does  not  permit  age  or  seniority  to  be  taken  into  account  in 
selecting workers for redundancy.  

The  general  provision  states  that  an  employer  may  not  terminate  the  employment 
contract  of  an  employee  who  has  less  than  four  years  to  go  before  they  reach 
pensionable  age,  unless  such  a  person  is  being  granted  a  pension  on  the  grounds  of 
incapacity to work.243  

In  this  period  of  special  protection  against  termination  of  the  employment  contract,  the 
employer  is  allowed  only  to  change  the  existing  working  and  remuneration  conditions 
but,  additionally,  only  in  respect  of  certain  groups  of  employees  enumerated  in  the 
legislation.244  Even  in  the  latter  case,  when  such  a  change  would  lead  to  a  reduction  in 
remuneration, the employer is obliged to pay a special allowance to compensate for this 
reduction in pay.245 There is an exemption in the case of the bankruptcy or liquidation of 
the employer; in such cases, the above-mentioned provision does not apply. 

242  Labour Code, 26 June 1974, Article 39. 
243  Labour Code, 26 June 1974, Articles 39 and 40. 
244  Act on the Special Conditions of Termination of Employment Relations for Reasons not related to Employees 
(Ustawa z 13 marca 2003 r. o szczególnych zasadach rozwiązywania z pracownikami stosunków pracy z 
przyczyn niedotyczących pracowników), 13 March 2003, Article 5(5). 

245  Act on the Special Conditions of Termination of Employment Relations for Reasons not related to Employees, 

13 March 2003, Article 5(6). 

67 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
b) 

Age taken into account for redundancy compensation 

In Poland, national law provides compensation for redundancy. This is not affected by the 
age of the worker. It is affected by the wages and number of years of employment with a 
particular employer.  

If  the  above-mentioned  employee,  who  is  protected  in  the  period  before  they  reach 
pensionable age, is somehow made redundant, they have the right to be re-employed or 
compensated. 

4.7  Public  security,  public  order,  criminal  offences,  protection  of  health, 
protection  of  the  rights  and  freedoms  of  others  (Article  2(5),  Directive 
2000/78) 

In  Poland,  national  law  includes  exceptions  that  seek  to  rely  on  Article  2(5)  of  the 
Employment Equality Directive. 

The 2010 Equal Treatment Act transposed Article 2(5). It justifies different treatment of 
natural  persons  on  the  grounds  of  religion,  belief,  political  opinion,  disability,  age  or 
sexual orientation, in undertaking measures necessary in a democratic society, for public 
security  and  the  maintenance  of  public  order,  for  the  protection  of  health  and  for  the 
protection  of  the  rights  and  freedoms  of  others  as  well  as  the  prevention  of  criminal 
offences, to the extent specified in other provisions (Article 8(2)). 

The  Polish  Constitution  also  stipulates  generally  that  any  limitation  on  the  exercise  of 
constitutional  freedoms  and  rights  may  by  imposed  only  by  statute,  and  only  when 
necessary  in  a  democratic  state  for  the  protection  of  its  security  or  public  order,  or  to 
protect  the  natural  environment,  health  or  public  morals  or  the  freedoms  and  rights  of 
other persons. Such limitations must not violate the essence of freedoms and rights.246 

On the basis of this provision, a number of limitations were introduced, especially in the 
area of protecting state security (visa regime, legalisation of residence, military service, 
etc.). 

4.8  Any other exceptions 

There  are  no  other  exceptions  to  the  prohibition  on  discrimination  (on  any  ground 
covered by this report) provided for in national law. 

Apart  from  the  above-mentioned  exceptions  (transposed  from  the  directives),  the  ETA 
provides expressis verbis that it does not cover the spheres of private and family life and 
legal actions  related to  these  spheres (Article 5(1)), and that it does not cover freedom 
to choose a party to a contract as long as it is not based on the grounds of gender, race, 
ethnic origin or nationality (Article 5(3)). 

According  to  M.  Kułak,  Article  5(1)  goes  too  far  and  might  be  understood  as  excluding 
from  the  protection  situations  in  the  ‘private’  sphere  of  employment,  for  example,  work 
at  home  (housekeeping,  cleaning  etc.).247  It  seems  to  be  a  theoretical  doubt,  however, 
as no such case has been identified.  

246  Constitution of the Republic of Poland, 2 April 1997, Article 31, available at: 

http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-republic-of-poland/. 

247  Kułak, M. (2021), pp. 17-18. 

68 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
5 

POSITIVE  ACTION  (Article  5  Directive  2000/43,  Article  7  Directive 
2000/78) 

a) 

Scope for positive action measures 

Positive action is permitted in national law in respect of racial or ethnic origin, religion or 
belief, disability, age or sexual orientation.  

The ETA provides in general (Article 11) that adopting specific measures that are aimed 
at  preventing  or  compensating  for  unequal  treatment  linked  with  inequality  does  not 
constitute a breach of the principle of equal treatment (all grounds are protected by law).  

The  2003  amendment  of  the  Labour  Code,  which  took  effect  on  1  January  2004, 
introduced  a  clear  and  general  stipulation  allowing  for  positive  action  in  employment 
relations.248  This  provision  covers  positive  action  not  only  for  racial  or  ethnic  origin, 
religion  or  belief,  disability,  age  and  sexual  orientation  but  equally  for  some  additional 
grounds: gender, political opinion and membership of a trade union.  

According  to  the  Labour  Code,  positive  action  can  take  the  form  of  specific  measures 
introduced  for  a  limited  period  of  time  in  order  to  equalise  opportunities  for  all,  or  a 
significant  number  of,  employees  who  are  distinguished  by  at  least  one  of  the  grounds 
named  above.  These  measures  must  be  aimed  at  compensating  for  the  disadvantages 
experienced by such employees. 

A comparison of the ETA and the Labour Code shows that in the latter, the law mentions 
‘a  limited  period  of  time’  within  which  positive  action  may  be  introduced.  However,  this 
should have no practical consequences.249  

There is no case law identified concerning this issue. 

b)  Quotas in employment for people with disabilities 

In Poland, national law provides for quotas for the employment of people with disabilities. 

The  Disabled  Persons  Act  contains  the  ‘System  of  Quotas  and  Penalties’  –  a  system  of 
incentives and penalties for employers which aims to support the employment of people 
with disabilities. Employers who, for at least 36 months, employ people who are officially 
recognised as disabled (who are unemployed or seeking work while not holding a job, or 
whose  disability  occurred  while  working  for  the  employer,  except  if  this  disability  was 
caused by the fault of, or infringement of regulations by, the employer or the employee) 
may receive reimbursements from the National Disabled Rehabilitation Fund (Państwowy 
for  adapting  existing 
Fundusz  Rehabilitacji  Osób  Niepełnosprawnych  -  PFRON) 
workstations  or  creating  new  ones  to  meet  the  needs  of  disabled  people;  adapting  or 
buying equipment to help disabled people to function at  work; and having the needs of 
persons with disabilities identified by occupational health services.250 

Furthermore,  an  employer  who  employs  people  with  disabilities  is  entitled  to  receive  a 
monthly  subsidy  for  the  remuneration  of  disabled  employees.251  The  amount  of  the 
subsidy  is  related  to  the  level  of  impairment  of  the  people  with  disabilities  who  are 
employed,  and  is  currently  approximately  PLN 1 950,  PLN 1 200  or  PLN 450  (EUR 430, 
EUR 260  or  EUR 100),  depending  on  the  level  of  disability.252  An  employer  may  also 

248  Labour Code, 26 June 1974, Article 18(3b)(3). 
249  ETA commentary 2017, p. 190. 
250  Disabled Persons Act, 27 August 1997, Article 26. 
251  Disabled Persons Act, 27 August 1997, Article 26a. 
252  As of March 2020 (exchange rate approx. EUR 1.00=PLN 4.5) 

69 

 
 
 
 
 
 
 
 
 
 
 
 
 
receive  a  refund  for  the  cost  of  a  co-worker  who  helps  a  person  with  a  disability  in 
adapting to work and communicating.253  

For employers (both public and private), there is a supplementary – this time negative – 
incentive to employ disabled people. An employer who employs at least 25 employees is 
obliged to pay a monthly sum to the PFRON unless the proportion of their employees who 
are  disabled  is  at  least  6 %.254  This  amount  is  determined  according  to  a  formula  in 
which  40.65 %  (the  figure  might  be  reduced  by  5 %  in  special  circumstances)  of  the 
average  remuneration  is  multiplied  by  the  theoretical  number  of  employees  who  should 
be  taken  on  in  order  to  reach  the  threshold  of  6 %  disabled  individuals  among  all  the 
people employed by the specific employer. According to the Act on the Civil Service,255 if 
the  proportion  of  people  with  disabilities  employed  in  a  public  office  is  less  than  6 %,  a 
disabled  individual  has  priority  in  a  recruitment  process  if  they  are  among  the  five  best 
candidates.256 

253  Disabled Persons Act, 27 August 1997, Article 26d. 
254  Disabled Persons Act, 27 August 1997, Article 21(1-2). 
255  Act on the Civil Service, (Ustawa o służbie cywilnej z 21 listopada 2008), Dz.U.2017.1889 t.j., 21 November 

2008, Article 29a.  

256  Ombud, annual report for 2014, pp. 71-72.  

70 

 
 
 
 
6 

REMEDIES AND ENFORCEMENT  

6.1  Judicial  and/or  administrative  procedures  (Article  7  Directive  2000/43, 

Article 9 Directive 2000/78) 

a) 

Available procedures for enforcing the principle of equal treatment 

In Poland, the following procedures exist for enforcing the principle of equal treatment: 

Civil law 
The  ETA  introduced  a  compensation  claim  (Articles  12-13)  stating  that  anyone  (natural 
and  legal  persons)  who  suffers  an  infringement  of  the  principle  of  equal  treatment  is 
entitled  to  damages.  The  relevant  general  rules  of  the  Civil  Code  and  the  Code  of  Civil 
Procedure apply. Court verdicts are binding.  

In addition, in matters not covered by the ETA, recourse may be made to civil law, which 
affords  protection  of  ‘personal  rights’  (Articles  23-24  of  the  Civil  Code).  According  to 
Article  30  of  the  Constitution,  the  inherent  and  inalienable  dignity  of  the  individual  is  a 
source  of  freedoms  and  rights  for  individuals  and  citizens.  It  is  inviolable.  The  respect 
and  protection  thereof  is  the  obligation  of  the  public  authorities.  Article  23  of  the  Civil 
Code  (which  should  be  interpreted  in  line  with  the  above-mentioned  constitutional 
provision) provides for general protection of ‘personal rights’. According to this provision, 
personal rights – in particular, health, freedom, honour, freedom of conscience, name or 
pseudonym,  image,  privacy  of  correspondence,  inviolability  of  the  home  and  scientific 
and  artistic  work,  as  well  as  inventions  and  improvements  –  are  protected  by  civil  law 
without prejudice to any protection provided by other regulations. 

The  provision  quoted  does  not  include  dignity  or,  for  instance,  age,  disability,  ethnic 
origin, race or sexual orientation, but the list of ‘personal rights’ is not exhaustive. There 
is no doubt that personal dignity is protected (as stated in the Constitution and confirmed 
by  a  wealth  of  legal  writings  and  jurisprudence).  Therefore,  if  a  person  is  discriminated 
against outside the labour context on the grounds of age, sexual orientation, race or any 
other  reason,  the  dignity  of  that  individual  is  obviously  infringed  and  they  may  try  to 
seek redress through this general civil clause. This provision on personal rights was used. 
for example. in two cases related to access to services for people with disabilities.  

In  the  case  Jolanta  K.  v.  Carrefour  Polska  Sp.z.o.o.,257  the  issue  concerned  access  to  a 
supermarket  for  a  blind  person  with  a  guide  dog.  The  parties  reached  a  settlement  in 
court.  Carrefour  also  announced  that  the  company  has  changed  its  negative  internal 
rules on people with disabilities. In addition, the case resulted in an amendment to Polish 
law  in  relation  to  access  specifically  for  blind  people  with  guide  dogs  to  grocery  stores, 
restaurants and similar premises (in force since June 2009). 

In the case Dominik Rymer v. XY, owner of the Sfinks restaurant258 the issue concerned 
access to a restaurant by a wheelchair user with an assistance dog. The court stated that 
refusal of access to a restaurant by a disabled person with an assistance dog violates the 
protection  of  ‘personal  rights’, and violates the principle  of  equal treatment in access to 
services offered to the public. Interestingly, the claimant lost his case in the first instance 
court.  The  Regional  Court  decided  –  with  quite  an  extraordinary  justification  –  that  his 
personal rights were not violated since he was an active person who enjoyed sport, which 
was  a  kind  of  therapy  for  him,  and  was  therefore  strong  psychologically  and  self-
confident. 

257  Warsaw Regional Court, judgment of 28 January 2009, No I C 498/08.  
258  Warsaw Court of Appeal, judgment of 28 September 2011, No I ACa 300/11.  

71 

 
 
 
 
 
 
 
 
 
 
 
On  the  basis  of  Article  24(1)  of  the  Civil  Code,  an  individual  whose  personal  rights  are 
jeopardised  by  another’s  actions  can  demand  that  the  action  cease,  unless  it  is  not 
unlawful.  Furthermore,  if  personal  rights  have  been  infringed,  the  individual  concerned 
can demand that the person  who infringed them rectify the effects of the violation, - in 
particular, by making a statement of appropriate content and form. The claimant can also 
demand pecuniary satisfaction or payment of an appropriate sum to a designated social 
cause based on the rules of compensation laid down in the Civil Code. If the infringement 
of  personal  rights  results  in  material  loss,  the  victim  may  demand  compensation  on 
general legal terms (Article 24(2)). Court verdicts are binding.  

Labour law 
Prior to 2011, a discrimination  compensation complaint had been introduced  only in the 
Labour  Code,  effective  as  of  1  January  2004  (Article  18(3d)).  Anyone  who  suffers  an 
infringement  of  the  principle  of  equality  in  employment  is  entitled  to  commence  judicial 
proceedings and seek compensation of at least the minimum monthly salary. The labour 
court  which  determines  the  compensation  will  take  into  consideration  the  type  and 
gravity  of  the  discriminatory  measures  applied  in  respect  of  the  complainant.  Court 
verdicts are binding.  

Furthermore, the principle of equal treatment and non-discrimination is considered to be 
one  of  the  fundamental  obligations  of  the  employer  to  the  employee.  Therefore,  the 
employee is entitled to terminate their labour contract without prior notice on the basis of 
a grave infringement by the employer of fundamental obligations towards  the employee 
(Article 55(1)(1) of the Labour Code).  

An  employee  is  also  entitled  to  initiate  judicial  proceedings  in  order  to  establish  the 
existence  of  a  labour  relationship  with  a  specific  content,  e.g.  in  order  to  determine 
appropriate remuneration when this has been reduced in a discriminatory manner.259 

Labour inspectors 
In addition, certain remedies may be applied by the labour inspectors, who supervise and 
monitor  the  observance  of  labour  law  (including  anti-discrimination  provisions). 
According  to  the  Act  on  the  National  Labour  Inspectorate,  a  labour  inspector  may  issue 
orders or improvement notices, make submissions or bring claims to a labour court if the 
establishment of the existence of a labour relationship is at stake.260 Measures taken by 
labour inspectors are binding, but the employer may challenge them in an administrative 
court. 

In its information on the challenges due to the pandemic situation in 2020, the Ombud’s 
Office  provided  an  interesting  example.  The  Ombud  sent  a  letter  to  the  Labour 
Inspectorate asking about its actions. The Labour Inspectorate responded that during the 
epidemic,  it  would  not  be  dealing  with  its  primary  task  –  investigating  violations  of 
workers’  rights  –  but  only  with  those  violations  of  labour  law  that  threaten  to  cause 
death.  Other  matters  would  be  dealt  with  after  the  state  of  epidemic  was  suspended. 
From 16 March 2020, therefore, inspections of labour inspectors were de facto limited to 
cases  of  direct  threat  to  the  life  and  health  of  employees  and  to  investigations  of  fatal, 
serious  and  collective  accidents  at  work.  As  a  result,  the  situation  of  the  lack  of  state 
supervision  over  the  conditions  of  performing  work,  which  is  difficult  to  accept  for 
constitutional reasons, has arisen.261 

259  Proceedings on the basis of Article 189 of the Code of Civil Procedure; see Rączka K. and Salwa. Z. (ed.) 

(2004) Kodeks pracy. Komentarz, 6th ed., Warsaw, p 72. 

260  Act on the National Labour Inspectorate (Ustawa z 13 kwietnia 2007 r. o Państwowej Inspekcji Pracy), 
Dz.U.2012.404 j.t., 13 April 2007, Articles 21-33. See also Article 63(1) of the Code of Civil Procedure. 

261  Ombud, annual report for 2020, p. 339. 

72 

 
 
 
 
 
 
 
 
 
 
Legal representation and court fees  
As  far  as  legal  representation  is  concerned,  some  preferential  treatment  is  allowed  in 
labour  cases.  In  principle,  legal  representation  may  be  provided  by  an  advocate 
(attorney-at-law)  or a legal  adviser,262 but for  an employee,  a representative  of a trade 
union, a labour inspector  or another  employee of the enterprise may also act as a legal 
representative.263  In  addition,  in  labour  cases,  claims  are  automatically  exempted  from 
court costs (with some exceptions).264  

Petty crimes 
The  Law  on  Petty  Crimes265  defines  the  refusal  to  sell  goods  as  a  petty  crime.  This 
provision stem from the Communist era and had a different meaning at that time, but it 
might  play  a  role  in  the  prohibition  of  discrimination  in  access  to  goods.  In  such  cases, 
victims should apply to the police, who act as prosecutors in petty crimes (district court). 
The  Code  of  Petty  Crimes  (minor  offences)  provides  in  Article  135  that  ‘Anyone  who, 
carrying on the sale of goods in a retail or catering business, hides goods meant for sale 
or deliberately refuses to sell them without just cause shall be subject to a fine’. The fine 
imposed by the  court (Article 1(1)) may be up to around PLN 5 000 (EUR 1 250). Court 
verdicts are binding.  

Until  June  2019,  one  further  provision  was  in  force:  Article  138,  which  stated  that 
‘Anyone who, being a professional service provider, demands or collects payment higher 
than that in force, or deliberately refuses to provide the service without just cause, shall 
be subject to a fine.’ 

This  provision  had  not  been  used  for  years  until  the  Ombud  finally  decided  to  use  it 
(Article  138  regarding  services)  in  the  case  of  a  person  using  a  wheelchair  who  was 
asked to leave a shop.266  

However,  in  2016,  the  provisions  of  the  Law  on  Petty  Crimes  mentioned  above  became 
the  subject  of  vigorous  debate.  A  small  printing  company  refused  to  print  a  roll-up 
banner  for  the  LGBT  Business  Forum  (a  CSO).  In  an  email  refusing  the  work,  an 
employee  wrote:  ‘We  do  not  contribute  to  the  promotion  of  the  LGBT  movement  in  our 
work.’ Following a complaint, the Ombud made a submission to the police suggesting an 
investigation  in  relation  to  discrimination  in  access  to  goods  based  on  the  Law  on  Petty 
Crimes.  The  police  agreed  and  filed  a  motion  in  court  to  fine  the  company.  The  Łódź-
Widzew District Court fined the printers PLN 200 (EUR 45) in a simplified procedure. The 
fine was challenged and the case started again in a court of first instance. 

The  Łódź-Widzew  District  Court  decided,  on  31  March  2017,  that  the  entrepreneur  was 
guilty of committing a misdemeanour under Article 138 of the Code of Petty Crimes and 
indicated  that  his  personal  convictions  did  not  justify  a  refusal  to  perform  the  service. 
The court of second instance  – the Łódź Regional Court – decided on  26 May 2017, the 
very  last  day  on  which  the  case  could  be  decided,  to  reject  the  appeal  and  uphold  the 
ruling of the court of first instance.  

However, in September 2017, the Minister of Justice filed a cassation complaint with the 
Supreme  Court.  The  Supreme  Court  pointed  out267  that  freedom  of  conscience  and 
religious  beliefs  may  justify  a  refusal  to  provide  a  service.  However,  a  balance  between 
freedom  of  conscience  and  religious  beliefs  on  the  one  hand  and  the  prohibition  of 

262  Code of Civil Procedure, 17 November 1964, Article 87(1). 
263  Code of Civil Procedure, 17 November 1964, Article 465(1). 
264  Act on Court Costs in Civil Cases (Ustawa z dnia 28 lipca 2005 r. o kosztach sądowych w sprawach 

cywilnych) (Dz.U.2018.300 t.j.), 28 July 2005, Article 35.  

265  Act on Petty Crimes (Ustawa z dnia 20 maja 1971 r. Kodeks wykroczeń) (Dz.U.1971.12.115), 20 May 1971. 
266  Information provided to the author of the report by the Ombud’s Office. 
267  Based on the information on the Supreme Court’s website, available at: 

http://www.sn.pl/aktualnosci/SitePages/Komunikaty_o_sprawach.aspx?ItemSID=229-271e0911-7542-
42c1-ba34-d1e945caefb2&ListName=Komunikaty_o_sprawach.  

73 

 
 
 
 
 
 
 
 
discrimination  on  the  other  should  always  be  struck  in  the  light  of  the  circumstances  of 
the case. In the given case, the Supreme Court held that the accused had no legitimate 
reason to refuse to perform a service motivated by his convictions. 

The Prosecutor General/Minister of Justice decided to challenge Article 138 of the Code of 
Petty  Crimes  before  the  Constitutional  Tribunal  as  being  contrary  to  the  principle  of  a 
democratic state of law expressed in the Constitution (Article 2: ‘The Republic of Poland 
shall  be  a  democratic  state  ruled  by  law  and  implementing  the  principles  of  social 
justice’).  

The Constitutional Tribunal held (in a majority decision, three to two) that Article 138 was 
unconstitutional.268 The Tribunal stated that the legislator’s decision to penalise a refusal 
to  provide  services  by  ‘a  professional  service  provider’  (even  ‘deliberately,  without  just 
cause’) is inadequate to the legislative objective to be met under Article 138 of the Code 
of Petty Crimes, and thereby violates Article 2 of the Constitution. In the Tribunal’s view, 
doubts  relate  in  particular  to  the  notions  of  ‘being  obliged  to  provide  a  service’  or 
‘unjustified refusal to provide a service’. The imprecise nature of these concepts may – at 
the application stage – lead to various interpretations, including interpretations so broad 
that  they  will  not  be  justified  by  constitutional  principles  and  values.  According  to  the 
Tribunal, doubts about these concepts cannot be removed by a method of interpretation 
in accordance with the Constitution. 

As  underlined  by  the  Ombud,  the  judgment  of  the  Constitutional  Tribunal  limits  legal 
protection  against  discrimination  in  access  to  services.  Removing  this  provision  carries 
negative  consequences  for  the  implementation  of  the  principle  of  equal  treatment  –  in 
terms  of  both  significant  limitation  of  legal  protection  and  the  social  significance  of  this 
change.  As  of  4  July  2019,  when  the  provision  lost  its  power,  there  is  a  real  threat  of 
segregation in the service market. There were comments in the public space that the CT 
judgment confirmed the existence  of the so-called universal ‘conscience clause’, i.e. the 
view  that  the  service  provider  may  freely  choose  the  clients  whom  he  serves. 269  One 
could  consider  the  breach  of  the  non-regression  rule  (p. 28)  as  defined  by  the  Racial 
Equality  Directive  (2000/43/EC).  However,  as  already  pointed  out,  the  provision  in 
question,  Article  138  of  the  Code  of  Petty  Crimes,  was  passed  for  reasons  completely 
different and unrelated to protection against discrimination. 

A  similar  case  involving  access  to  services  was  heard  in  March  2017.  An  entrepreneur 
(Robert  K.)  who  delivers  training  courses  in  Krav  Maga,  a  form  of  self-defence  and 
fighting system, at first agreed to run a course, but later refused when he found out that 
the  group  that  requested  it  comprised  gay  people.  The  group  sent  a  complaint  to  the 
Ombud  and  considered  invoking  Article  138  of  the  Code  of  Petty  Crimes.270  The  Ombud 
informed the police, who decided to bring271 the case to court. In March 2018, the court 
of  first  instance  found  Robert  K.  guilty  of  a  misdemeanour,  but  the  punishment  was 
waived.  

Criminal law 
Discriminatory  treatment  may,  in  some  circumstances,  take  the  form  of  a  criminal 
offence  prosecuted  under  the  Penal  Code.  In  such  situations,  a  criminal  proceeding  can 
be instituted by a public prosecutor ex officio, or sometimes by the victim themselves, in 
accordance with the Code of Criminal Procedure. 

268  Based on information on the website of the Constitutional Tribunal, available at: 

http://trybunal.gov.pl/postepowanie-i-orzeczenia/komunikaty-prasowe/komunikaty-po/art/10679-odmowa-
swiadczenia-uslugi-ze-wzgledu-na-wolnosc-sumienia-i-religii-uslugodawcy/.  

269  Ombud, annual report for 2019, pp. 23-26.  
270  See: https://www.facebook.com/grupastonewall/posts/1021872407956405; 

http://rainbowstar.pl/pl/samoobrona-dla-osob-lgbt/ ; http://wyborcza.pl/7,87647,21625227,samoobrona-
przed-gejami.html. 

271  See: http://poznan.wyborcza.pl/poznan/7,36001,21890090,odmowil-lekcji-osobom-lgbt-policja-stawia-

zarzuty-ale-waha.html. 

74 

 
 
 
 
 
 
 
The  Penal  Code  does  not  cover  all  cases  of  discrimination,  but  nevertheless  criminal 
proceedings  may  be  instituted  in  more  serious  cases,  such  as:  the  use  of  force  or  an 
illegal  threat  towards  individuals  or  groups  of  people  because  of  their  national,  ethnic, 
racial,  political  or  religious  affiliation;272  a  public  insult  towards  individuals  or  groups  of 
people  or  the  infringement  of  the  personal  integrity  of  another  person  on  these  same 
grounds;273 and the propagation of fascism and incitement to hatred based on national or 
ethnic origins, race or religion.274 Court decisions are binding.  

Administrative law  
There are four stages of the administrative procedure, two within the administration itself 
(the first and the second instance) and two judicial, the first instance (appeal procedure) 
before the Regional Administrative Court and the second instance (cassation procedure) 
before the Supreme Administrative Court. Administrative Courts exercise control over the 
performance  of  the  public  administration,  the  control  also  extends  to  judgments  on  the 
conformity  to  statute,  of  resolutions  issued  by  the  organs  of  local  government  and 
normative acts of territorial authorities of government administration (Article 184 of the 
Constitution).  The  task  of  administrative  judiciary  is  to  control  actions  taken  by  public 
administration in terms of their lawfulness (cassation-appeal-based adjudicating founded 
on the criterion of legality).275 

There  are  no  administrative  remedies  laid  down  specifically  to  deal  with  discrimination 
issues,  although  such  issues  can  sometimes  be  present  in  administrative  proceedings. 
However, the ETA (Article 24) introduced a new possibility into administrative procedure, 
amending the Administrative Procedure Code.276 It now provides that, if there has been a 
court  ruling  that  found  that  there  had  been  an  infringement  of  the  principle  of  equal 
treatment,  and  if  this  infringement  influenced  the  final  administrative  decision,  an 
administrative retrial may be demanded.277 The procedure is binding.  
Therefore,  when  it  comes  to  the  discrimination  by  public  authorities  and  bodies 
administrative procedure might be helpful to establish lack of legality of their actions. But 
when  it  comes  to  the  compensation  claims  and  damages  it  is  civil  courts  and  general 
compensation claims under ETA and Civil Code that need to be used.  

Ombud 
With regard to non-judicial measures, a complaint to the Ombud’s Office may prove to be 
an effective tool. Since 1 January 2011, the Ombud has been designated as an equality 
body.  Although  the  Ombud  cannot  issue  a  legally  binding  decision,  the  Ombud’s  Office 
can  investigate  a  case  and  exert  pressure  on  the  bodies  responsible  for  inappropriate 
conduct, or it can take certain legal steps (see more under Section 7).278  

European Court of Human Rights 
The  option  of  bringing  an  individual  complaint  before  the  European  Court  of  Human 
Rights (ECtHR) on the basis of an alleged violation of any rights or freedoms guaranteed 
by  the  European  Convention  on  Human  Rights  or  its  additional  Protocols  in  connection 
with  Article  14  of  the  Convention  cannot  be  ignored.  The  independent  use  of  Article  14 
(on  non-discrimination)  will  not  be  possible  unless  Poland  ratifies  Protocol  No. 12.  To 
date, however, there is no sign that the Government intends to accept the Protocol. 

272  Act on the Penal Code (referred to as the Penal Code) (Ustawa o Kodeks karny), 6 June 1997, Article 

119(1). 

273  Penal Code, 6 June 1997, Article 257. 
274  Penal Code, 6 June 1997, Article 256. 
275  See information ‘Administrative_Judiciary_Poland’ available at the website of the Supreme Administrative 

Court: http://www.nsa.gov.pl/download.php?id=1020, pp 1-4.   

276  Act on the Code of Administrative Procedure (referred to as the Administrative Procedure Code) (Ustawa z 

dnia 14 czerwca 1960 r. - Kodeks postępowania administracyjnego), 14 June 1969, as amended. 

277  Administrative Procedure Code, 14 June 1969, Article 145b(1).  
278  See Act on the Commissioner for Human Rights, 15 July 1987, Articles 11-14. 

75 

 
 
 
 
 
 
 
 
Alternative dispute resolutions 
According  to  the  Labour  Code  (Article  242),  claims  stemming  from  an  employment 
relationship can be adjudicated either by a labour court or by a conciliation committee.279 
Cases  can  be  referred  to  a  conciliation  committee  only  by  employees  and  not  by 
employers.  The  conciliation  procedure  is  intended  to  be  speedy;  the  Labour  Code 
specifies  a  period  of  14  days  as  the  normal  term  within  which  the  committee  should 
adjudicate.280  An  agreement  reached  before  a  conciliation  committee  should  be 
implemented voluntarily by the employer. If the employer opposes this and does not put 
the agreement into operation, it can be executed in accordance with civil procedure.281 

In  both  criminal  and  civil  procedure,  the  possibility  of  mediation  exists  and  is  gradually 
becoming more popular. If the court directs the case (criminal or civil) to mediation, its 
result  (if  agreement  is  reached)  is  confirmed  by  the  court  and  is  as  binding  as  a  court 
decision. 

Another conciliation mechanism is provided for in the Code of Civil Procedure and allows 
a  court,  acting  through  a  single  judge,  to  confirm  an  agreement  reached  between  the 
parties before court proceedings commence.282 Confirmation by a court of an agreement 
reached between parties is binding in the same way as a court decision. 

The  procedures  mentioned  are  the  same  in  relation  to  employment  in  the  private  and 
public sectors.  

b) 

Barriers and other deterrents faced by litigants seeking redress 

The time limits in the procedures mentioned vary, but generally speaking they do not act 
as deterrents to seeking redress, as they are  counted in years  rather than months. The 
time limits in relation to discrimination proceedings are the same as general time limits in 
other labour or civil cases.  

The statute of limitations in compensation claims based  on infringement of the principle 
of  equal  treatment  (Article  15  of  the  ETA)  is  three  years  from  the  moment  when  the 
person learns about the infringement, and no later than five years from the infringement 
itself.  According  to  the  Labour  Code,  claims  under  the  employment  relationship  shall 
expire after three years from the date on which the claim became due.283 In general, the 
statute  of  limitations  in  civil  matters  is  six  years,  and  three  years  in  cases  of  ‘periodic 
services’ or cases related to the ‘professional activity of the party as an entrepreneur’. 284 
This shortened three-year period may cause problems. According to research conducted 
in 2009 by the Polish Section of the International Commission of Jurists (ICJ),285 a major 
source  of  obstacles  in  pursuing  justice  before  the  claim  becomes  time-barred  is  the 
situation  of  dependency  between  a  person  eligible  to  bring  the  lawsuit  and  the  liable 
party.  It  has  been  observed  that  employees  often  do  not  seek  to  enforce  their  rights 
through  fear  of  losing  their  jobs.  As  long  as  the  employment  relationship  lasts,  the 
employee may be afraid of bringing a claim against the employer. The short time bar on 
claims for payment (three years), when combined with a lack of legal awareness and fear 
of loss of livelihood, may create a serious obstacle to pursuing justice.286 

279  Labour Code, 26 June 1974, Article 242. 
280  Labour Code, 26 June 1974, Article 251. 
281  Labour Code, 26 June 1974, Article 255(1). 
282  See Code of Civil Procedure, 17 November 1964, Articles 184-186. 
283  Labour Code, 26 June 1974, Article 291. 
284  Civil Code, 23 April 1964, Article 118 (as amended in 2018). 
285  See Szymielewicz, K. (2009), Access to justice for human rights abuse involving corporations. A project of 

the International Commission of Jurists – Report for Poland. 

286   See ‘Rozpoczęcie biegu przedawnienia roszczenia pracowniczego’ (‘Commentary on the Supreme Court 

judgment of 3 February 2009’) (I PK 156/08)), Monitor Prawa Pracy (6), 2009. 

76 

 
 
 
 
 
 
 
 
 
An application for an administrative retrial (described under point a) above – if there has 
been  a  court  ruling  which  finds  that  there  has  been  an  infringement  of  the  principle  of 
equal  treatment,  an  administrative  retrial  may  be  demanded  if  this  infringement 
influenced  the  final  administrative  decision)  may  be  filed  within  a  month  of  the  court 
ruling on which the claim is based, becoming final.287 The administrative decision may be 
quashed within five years of it being served or announced.288 

In Polish law, it is possible to bring a case after the employment relationship has ended. 
The  exercise  by  an  employee  of  their  rights  arising  from  a  violation  of  the  principle  of 
equal  treatment  cannot  constitute  a  reason  for  the  employer  to  terminate  the 
employment  relationship.289  If  the  contract  is  terminated,  the  employee  can  either  (1) 
make  a  request  to  a  court  that  the  notice  to  quit  be  recognised  as  void;  or  (2)  if  the 
employment  relationship  has  already  ended,  the  employee  has  the  right  to  demand  to 
return to work under the previous conditions or to receive compensation.290 

Moreover,  an  employee  can  terminate  an  employment  contract  without  notice  if  the 
employer  has  severely  violated  their  obligations  towards  the  employee,291  and  the 
employee can then bring a case against the employer. 

Functional  barriers  constitute  one  other  factor  which  could  act  as  a  deterrent  to  people 
seeking  redress.  Some  courts  and  other  bodies  involved  in  the  administration  of  justice 
are not easily accessible for people with disabilities. In addition, it is relatively difficult to 
find information in Braille. 

Finally, one could argue that ‘rule-of-law crisis’ in Poland could be a barrier or deterrent 
faced by litigants seeking redress. 

c) 

Number of discrimination cases brought to justice 

In  Poland,  statistics  on  the  number  of  cases  related  to  discrimination  brought  to  justice 
are not available. 

There  are  still  no  full  and  reliable  official  statistics  on  the  number  of  cases  related  to 
discrimination  that  are  brought  to  justice.  After  the  ETA  came  into  force  on  1  January 
2011, the Polish Society of Anti-Discrimination Law sent a letter (dated 24 January 2011) 
to the Minister of Justice urging the Ministry to collect the relevant statistical data. Both 
the Ombud and the Government Plenipotentiary for Equal Treatment supported the idea 
expressed  in  this  letter,  and  the  Ministry  of  Justice  declared  that  it  would  collect  the 
relevant data. As a result, the Ministry of Justice provided information for 2011 – the first 
year  of  the  operation  of  the  law.  According  to  this  information,  in  2011  30  cases  were 
brought to district and regional courts for compensation for discrimination under the ETA. 
Of those 30 cases, 17 were decided and 13 were still pending in 2012.292  

However, in the Ombud’s annual report for 2013, numbers for 2012 were not given and 
the  report  stated  that,  despite  its  declarations,  the  Ministry  of  Justice  had  still  not 
provided the relevant information.293 What is more, the cases for 2011 mentioned above, 

287  Administrative Procedure Code, 14 June 1969, Article 145b(2).  
288  Administrative Procedure Code, 14 June 1969, Article 146(1). 
289  Labour Code, 26 June 1974, Article 18(3e). 
290  Labour Code, 26 June 1974, Articles 44-45.  
291  Labour Code, 26 June 1974, Article 55. 
292  Ombud, ‘Information on activities of the Commissioner for Human Rights in the field of equal treatment in 
2011 and on the observance of the principle of equal treatment in the Republic of Poland’ (‘Informacja o 
działalności Rzecznika Praw Obywatelskich w obszarze równego traktowania w roku 2011 oraz o 
przestrzeganiu zasady równego traktowania w Rzeczypospolitej Polskiej’), Bulletin 2012/2 ((Biuletyn 
Rzecznika Praw Obywatelskich 2012, nr 2), Warsaw, June 2012, p. 79, available at: http://rpo.gov.pl/; see 
also Ombud, annual report for 2012, p. 404. 

293  Ombud annual report for 2012, p. 451.  

77 

 
 
 
 
 
 
 
 
 
 
listed  by  the  Ministry  of  Justice,  were  reviewed  by  the  Polish  Society  for  Anti-
Discrimination  Law  within  the  framework  of  a  monitoring  project,  which  found  that, 
apparently, they were  not based  on the  ETA,  as declared by the  Ministry  of Justice, but 
on other laws (such as the Labour Code and the Civil Code).294  

According  to  information  provided  by  the  Ministry  of  Justice295  at  the  request  of  the 
Ombud  in  2013,  11  cases  claiming  compensation  for  discrimination  on  the  basis  of  the 
protection of personal rights and the ETA were brought to district and regional courts and 
one  case  was  brought  to  an  appellate  court.  Of  the  12  cases,  in  three  cases  the  claims 
were  dismissed;  two  cases  were  returned;  one  case  was  discontinued;  and  six  cases 
were still pending in 2014. In the Ombud’s annual reports since 2014, numbers are not 
given, since the Ministry does not provide them. The number of cases based on the ETA 
in 2015 were provided in the report of the Plenipotentiary.296 In answer to a query from 
the  Plenipotentiary,  the  Ministry  of  Justice  provided  information  on  17  cases  that  were 
brought  in  2015  under  the  ETA  and  24  that  were  brought  in  2016.297  However,  nobody 
verified this information.  

Although  the  information  provided  is  official  (covering  at  least  some  years),  it  must  be 
said that it is not wholly reliable. In 2014, a coalition of CSOs contacted all Polish courts 
to request, in the official formula of access to public information, data on discrimination 
cases brought under the ETA.298 All 287 courts responded. Only five cases brought to the 
courts under the ETA over the course of four years (2011-2014) were identified; some of 
them had actually been brought by the same organisations carrying out the research.  

This obviously proves that claims based on the ETA are not being brought to the courts. 

There were, however, more detailed statistics covering court cases based on the Labour 
Code: sex discrimination in employment (528 cases heard in 2012, 427 in 2013); sexual 
harassment  as  discrimination  in  employment  (14  cases  in  2012,  four  cases  in  2013); 
bullying (324 cases in 2012, 330 cases in 2013); and discrimination in employment (93 
cases in 2012, 63 cases in 2013, but no disaggregation by ground).299 

d) 

Registration of national court decisions on discrimination  

In Poland, court decisions on discrimination are registered as such by national courts.  

There  are  still  no  full  and  reliable  official  statistics  on  the  number  of  cases  related  to 
discrimination  brought  to  justice  based  on  the  ETA  and  the  Civil  Code.  The  Ministry  of 
Justice  declared  that  it  would  collect  relevant  data  but,  as  described  in  point  c)  above, 
the  information  on  discrimination  cases  is  limited.  What  is  more,  although  theoretically 
cases are registered, the system is not wholly reliable. The situation  was better when it 

294  See: PTPA (2013), Prawo antydyskryminacyjne w praktyce polskich sądów powszechnych. Raport z 

monitoringu (Anti-discrimination law in the practice of Polish Ordinary Courts – monitoring report), Polish 
Society of Anti-Discrimination Law, pp. 98-99, available at: www.ptpa.org.pl. 

295  Ombud, annual report for 2013, p. 107.  
296  Government Plenipotentiary for Equal Treatment (2016), Report on the Activities of the Government 

Plenipotentiary for Equal Treatment for the period 1 January 2015 – 31 December 2015 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2015 r. do 31 
grudnia 2015 r.), Warsaw, pp. 10-11. 

297  Government Plenipotentiary for Equal Treatment (2018), Report on the Activities of the Government 

Plenipotentiary for Equal Treatment for the period 1 January 2017 – 31 December 2017 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2017 r. do 31 
grudnia 2017 r.), Warsaw. More recent data is not available.  

298  Kukowka, G. and Siekiera, A. (eds) (2014), Monitoring skuteczności funkcjonowania Ustawy z dnia 3 
grudnia 2010r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania 
(Monitoring the effectiveness of the functioning of the Act of 3 December 2010 on the Implementation of 
Certain Provisions of the European Union in the Field of Equal Treatment (ETA)), Warsaw.  

299  Ombud, annual report for 2012, pp. 450-451; annual report for 2013, p. 107. No relevant information is 

given in the reports for 2014, 2015, 2016, 2017, 2018 and 2019.  

78 

 
 
 
 
 
 
 
 
 
comes  to  cases  based  on  the  Labour  Code  –  some  categories  of  discrimination  cases 
were registered (see point c) above) but not disaggregated by ground.  

One  more  problem  is,  if  there  is  a  change  in  the  legal  qualification  of  a  case  during  a 
procedure.  It can happen that the initial qualification changes but there is no possibility 
of  changing  it  in  the  statistics.  As  a  result,  the  data  on  cases  registered  is  not  wholly 
reliable.  

This  lack  of  statistical  information  is  constantly  brought  up  by  the  Ombud  in  its  annual 
reports.  

6.2  Legal  standing  and  associations  (Article  7(2)  Directive  2000/43,  Article 

9(2) Directive 2000/78) 

a) 

Engaging in proceedings on behalf of victims of discrimination (representing them) 

In Poland, associations/organisations/trade unions are entitled to act on behalf of victims 
of discrimination.300 

This  solution  was  adopted  in  the  Code  of  Civil  Procedure,  which  allows  CSOs  (this 
includes trade unions) to file a claim on behalf of individuals or join such proceedings,301 
e.g.  in  alimony  (maintenance)  and  consumer  protection  cases302  or  in  labour  law  and 
social security cases.303 According to the Code of Civil Procedure, organisations involved 
in  combating  discrimination  may  engage  in  judicial  procedures  on  behalf  of  a 
complainant.  Article  61  stipulates  that  organisations  whose  official  objectives  include 
protecting  equality  and  non-discrimination  and  protection  from  unfounded  direct  or 
indirect violation of the rights and duties of citizens may, in the case of claims in this field 
and with the written consent of citizens, institute actions on behalf of citizens (the court 
verifies  only  the  fulfilment  of  the  formal  criteria,  such  as  the  association’s  official 
objectives).304  Since  May  2012,  CSOs  may  also  initiate  proceedings  on  behalf  of  an 
individual who is an entrepreneur (if that individual is a member of the organisation and 
provides written consent) in a dispute with another entrepreneur.  

According  to  M.  Kułak,  the  use  of  the  wording  ‘unfounded  direct  or  indirect  violation’ 
(Article 61(1)(5)) could suggest that the standing is limited to  cases of direct or indirect 
discrimination and no other forms.305 It is, however, an academic doubt, as there are no 
known cases of such a limitation in practice. The report author is also of the opinion that 
the  directives’  requirement  for  CSOs’  effective  participation  (not  formal,  but  real)  might 
be  not  fulfilled  by  the  fact  that  the  court  may  order  an  organisation  to  pay  the 
reimbursement of trial costs to an opponent. This might create a freezing effect and lack 
of CSOs’ activity due to the financial risks.306  

300  See more detailed analyses in: Spurek, S., ‘Udział organizacji społecznej w postępowaniu karnym, cywilnym 

i administracyjnym’ (‘Participation of civil society organisations in criminal, civil and administrative 
proceedings’), in: Śmiszek, K. (ed.) (2006), Przeciwdziałanie dyskryminacji z powodu orientacji seksualnej 
w świetle prawa polskiego oraz standardów europejskich (Counteracting discrimination on the ground of 
sexual orientation in the light of Polish law and European standards), Warsaw; Gonera, K. (Supreme Court 
Judge), ‘Udział organizacji społecznych w postępowaniu sądowym jako gwarancja prawa do rzetelnego 
procesu’ (‘Participation of civil society organisations in court proceedings as a guarantee of the right to fair 
trial’) and Bernatt, M., ‘Opinia przyjaciela sądu (amicus curiae) jako pomocnicza instytucja prawna w 
orzecznictwie sądów polskich’ (‘The amicus curiae brief as an auxiliary legal institution in the jurisprudence 
of Polish courts’), both in: Bojarski, Ł. and Beck, C. H. (eds.) (2008), Sprawny sąd. Zbiór dobrych praktyk 
(The Efficient Court – collection of best practices), Warsaw, pp. 166-176 and pp. 184-189).  

301  Code of Civil Procedure, 17 November 1964, Article 8. 
302  Code of Civil Procedure, 17 November 1964, Article 61. 
303  Code of Civil Procedure, 17 November 1964, Article 462. 
304  Act amending the Code of Civil Procedure and some other acts (Ustawa z dnia 2 lipca 2004 r. o zmianie 

ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw), 2 July 2004, entered into force on 
4 February 2005, Article 61.  
305  Kułak, M. (2021), pp. 34-35. 
306  Kułak, M. (2021), pp. 34-35. 

79 

 
 
 
 
 
 
 
 
 
If  an  organisation  initiates  civil  proceedings  on  behalf  of  a  party,  it  has  the  rights  of  a 
party  to  the  proceedings  and  may  seek  and  obtain  any  remedy,  including  calling 
witnesses  or  appealing  the  ruling  (the  obligations  for  the  party  also  apply,  such  as 
respecting  court  orders  and  compliance  with  deadlines)  (Article  62  of  the  Code  of  Civil 
Procedure).  

Until 2012, there were no special provisions on victim consent in civil proceedings; it was 
a  matter  of  judicial  practice.  In  some  cases,  the  victim’s  verbal  consent  on  the  court 
record was enough. Since May 2012, the written consent of the party is always needed. 
There are no special additional provisions on victim consent. 

Similarly, CSOs are entitled to bring administrative proceedings. Article 31(1) of the Code 
of Administrative Procedure reads: ‘A civil society organisation may, in a case concerning 
another person, request: 1) to institute proceedings, 2) to be admitted to proceedings, if 
it  is  justified  by  the  official  objects  of  the  organisation  and  when  it  is  in  the  public 
interest’.307 It is up to the administrative organ to decide whether to admit the CSO, but 
this  decision  may  be  appealed.  An  organisation  admitted  to  administrative  proceedings 
has the rights of a party (with some limitations).308  

It  should  be  mentioned  that,  in  fact,  standing  on  behalf  of  victims  of  discrimination  is 
seen  by  CSOs  as  very  much  a  professional  activity  that  requires  special  competences. 
Research undertaken by the Polish Association of Anti-Discrimination Law has shown that 
not many CSOs engage in this kind of work: it is mostly done by those familiar with legal 
issues, especially large, strong CSOs based in the capital city.309  

b) 

Engaging  in  proceedings  in  support  of  victims  of  discrimination  (joining  existing 
proceedings) 

Associations/organisations/trade  unions  are  entitled  to  act  in  support  of  victims  of 
discrimination. 

A CSO (including trade unions) may act in support of the complainant.310 

According  to  the  Code  of  Civil  Procedure,  organisations  involved  in  combating 
discrimination may engage in judicial procedures in support of a complainant. Article 61 
stipulates  that  organisations  whose  official  objectives  include  protecting  equality  and 
non-discrimination  and  protection  from  unfounded  direct  or  indirect311  violation  of  the 
rights  and  duties  of  citizens,  in  the  case  of  claims  in  this  field  and  with  the  written 
consent  of  the  claimant,  may  join  proceedings  at  any  stage  thereof  (the  court  verifies 
only the fulfilment of the formal criteria, such as the association’s official objectives).312  

307  Administrative Procedure Code, 14 June 1969, Article 31(1).  
308  Administrative Procedure Code, 14 June 1969, Article 31(3). 
309  See PTPA (2013), Prawo antydyskryminacyjne w praktyce polskich sądów powszechnych. Raport z 

monitoringu (Anti-discrimination law in the practice of Polish Ordinary Courts – monitoring report), Polish 
Society of Anti-Discrimination Law, pp. 179-212; available at: www.ptpa.org.pl. 

310  See more detailed analyses in: Spurek, S., ‘Udział organizacji społecznej w postępowaniu karnym, cywilnym 

i administracyjnym’ (‘Participation of civil society organisations in criminal, civil and administrative 
proceedings’), in: Śmiszek, K. (ed.) (2006), Przeciwdziałanie dyskryminacji z powodu orientacji seksualnej 
w świetle prawa polskiego oraz standardów europejskich (Counteracting discrimination on the ground of 
sexual orientation in the light of Polish law and European standards), Warsaw; Gonera, K. (Supreme Court 
Judge), ‘Udział organizacji społecznych w postępowaniu sądowym jako gwarancja prawa do rzetelnego 
procesu’ (‘Participation of civil society organisations in court proceedings as a guarantee of the right to fair 
trial’) and Bernatt, M., ‘Opinia przyjaciela sądu (amicus curiae) jako pomocnicza instytucja prawna w 
orzecznictwie sądów polskich’ (‘The amicus curiae brief as an auxiliary legal institution in the jurisprudence 
of Polish courts’), both in Bojarski, Ł. and Beck, C. H. (eds.) (2008), Sprawny sąd. Zbiór dobrych praktyk 
(The Efficient Court – collection of best practices), Warsaw (pp. 166-176 and 184-189).  

311  Please note the comment on the wording of the provision in point a), above.  
312  Act amending the Code of Civil Procedure and some other acts, 2 July 2004, entered into force on 4 

February 2005, Article 61. 

80 

 
 
 
 
 
 
 
 
 
 
Since  May  2012,  CSOs  may  also  join  proceedings  in  support  of  an  individual  who  is  an 
entrepreneur  (if  that  individual  is  a  member  of  the  organisation  and  provides  written 
consent) in a dispute with another entrepreneur.  

If  a  CSO  does  not  participate  in  the  proceedings,  it  may  still  present  its  opinion  on  the 
case to the court (acting de facto as an amicus curiae even if the law does not use this 
expression).313  An  important  ruling  by  the  Constitutional  Tribunal  referred  to  an  amicus 
curiae brief provided by a CSO in a case before the CT, thus in a way recognising the use 
of an amicus curiae by the courts even without a clear legal provision allowing for this.314 

Similarly, CSOs are entitled to join administrative proceedings. Article 31(1) of the Code 
of Administrative Procedure reads: ‘A civil society organisation may, in a case concerning 
another person, request: 1) to institute proceedings, 2) to be admitted to proceedings, if 
it  is  justified  by  the  official  objectives  of  the  organisation  and  when  it  is  in  the  public 
interest’.315  It  is  up  to  the  administrative  organ  to  decide  whether  to  admit  the  civil 
society organisation, but this decision may be appealed. But even if it is not taking part 
in proceedings as a party, an organisation, with the consent of the administrative organ, 
may  still  express  its  opinion  (amicus  curiae  brief).316  The  Act  on  Procedure  before 
Administrative Courts (a separate instrument from the Code of Administrative Procedure) 
also  allows  CSOs  to  take  part  in  proceedings  when  this  is  justified  by  their  official 
objectives and in cases specified by particular provisions.317 An organisation admitted to 
administrative proceedings has the rights of a party (with some limitations) (Article 31(3) 
of the Code of Administrative Procedure).  

Representatives of CSOs may also be admitted to criminal proceedings. According to the 
Code  of Criminal Procedure,318 a representative  of a  CSO may be admitted if ‘there is  a 
need  to  protect  the  public  interest  or  an  important  individual  interest  falling  within  the 
official objectives of the organisation, in particular the need to protect human rights and 
freedoms.’ The decision whether to admit the representative rests with the court, which 
evaluates  the  importance  of  the  public  or  individual  interest.  The  application  to  admit  a 
representative  should  be  submitted  in  writing  and  designate  as  the  representative  a 
specific  person  or  persons.  In  criminal  proceedings,  a  written  application  would  be 
needed.  

In  criminal  proceedings,  the  rights  of  a  representative  of  a  CSO  are  limited  to 
participation  in  the  hearing,  expressing  their  opinion  verbally  on  the  court  record  and 
submitting their opinion in writing (Article 91 of the Code of Criminal Procedure).  

c) 

Actio popularis 

National  law  does  not  allow  associations,  organisations  or  trade  unions  to  act  in  the 
public  interest  on  their  own  behalf,  without  a  specific  victim  to  support  or  represent 
(actio popularis). 

d) 

Class action 

National  law  does  not  allow  associations,  organisations  or  trade  unions  to  act  in  the 
interest of more than one individual victim (class action) for claims arising from the same 
event.  

313  Code of Civil Procedure, 17 November 1964, Article 63. 
314  Constitutional Tribunal, judgment of 16 January 2006, No. SK 30/05, justification No. p. I. 8. p. III 2.2. 
315  Administrative Procedure Code, 14 June 1969, Article 31(1). 
316  Administrative Procedure Code, 14 June 1969, Article 31(2-5). 
317  Act on Procedure before Administrative Courts, (Ustawa z dnia 30 sierpnia 2002 r. Prawo o postępowaniu 
przed sądami administracyjnymi (Dz.U.2017.1369 t.j.), 30 August 2002, Articles 9, 25(4) and 33(2).  
318  Act on the Code of Criminal Procedure (Ustawa z dnia 6 czerwca 1997 r. Kodeks postępowania karnego 

(Dz.U.2017.1904 t.j.), 6 June 1997, Articles 90-91. 

81 

 
 
 
 
 
 
 
 
 
 
In  2009,  Parliament  passed  a  law  on  class  action  which  entered  into  force  on  19  July 
2010.319  The  European  model  of  class  action,  as  opposed  to  the  American  one,  was 
chosen – meaning that all parties interested in the case must join it personally.  

Unfortunately, at the very end of work on the draft act, when it had already been passed 
by the Sejm, the Senate introduced some changes that significantly narrowed the scope 
of the law and limited it to consumer protection claims and torts (with the exception  of 
protection of ‘personal rights’). Therefore, it does not include, for instance, employment 
cases (although the issue is disputed and requires judicial interpretation as opinions have 
been voiced that some employment claims,  such as those based on torts, could be filed 
as  a  collective  claim).  Nevertheless,  organisations  have  no  right  to  take  part  in  class 
action;  it  is  undertaken  by  lawyers  representing  clients.  There  are  no  amendments 
foreseen regarding collective redress mechanisms.320  

6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78) 

In Poland, national law requires a shift in the burden of proof from the complainant to the 
respondent.  

In  anti-discrimination  cases  in  relation  to  employment  matters,  the  burden  of  proof  is 
partially shifted from the complainant to the respondent. Article 18(3b)(1) in fine of the 
Labour  Code  clearly  states  that  it  is  the  employer  who  must  prove  that  there  were 
objective  reasons  to  apply  discriminatory  treatment.  It  is  sufficient  for  the  employee  to 
indicate only facts from which it can be presumed that discrimination has occurred. 

Until  2010,  the  shift  in  the  burden  of  proof  existed  only  in  the  Labour  Code.  The  2010 
ETA  (Article  14)  introduced  the  shift  in  the  burden  of  proof  in  all  compensation 
proceedings  regarding  infringement  of  the  principle  of  equal  treatment  governed  by  the 
Act, which is an exception from the general rule for civil proceedings that the obligation 
to prove a fact falls on the person who derives legal effects from the fact (Article 6 of the 
Civil Code).  

However,  since  in  reality  parties  rarely  base  their  claims  on  the  ETA,321  the  use  of  the 
shift  in  the  burden  of  proof  is  limited  in  general  to  Labour  Code  cases,  and  to  some 
extent only to discrimination cases based on the general provisions of the Civil Code – in 
personal  rights  cases  –  where  the  burden  of  proof  is  not  shifted  as  under  the  ETA  or 
Labour  Code  but  there  is  still  a  mechanism  for  reversing  the  burden  of  proof  (Article 
24(1) of the Civil Code).  

In  addition,  since  the  ETA  seems  to  limit  possible  damages  sought  to  material  damage 
only,322  a  compensation  claim  for  non-material  damage  would  require  following  general 
civil rules – again, without the shift in the burden of proof.323  

According to the ETA (Article 14(2)), whoever (complainant) alleges infringement of the 
principle  of  equal  treatment  must  substantiate  the  probability  of  a  violation.  If  there  is 
prima  facie  evidence  (probability)  of  a  violation  of  the  principle  of  equal  treatment,  the 
respondent is obliged to show that they did not commit the violation (Article 14(3)). This 
provision  refers  to  all  cases  governed  by  law  –  this  means  all  forms  of  discrimination 
(including harassment) on the grounds protected by the Act.  

319  Act on Pursuing Claims in Collective Actions (Ustawa z dnia 17 grudnia 2009 r. o dochodzeniu roszczeń w 

postępowaniu grupowym), 17 December 2009, in force from 19 July 2010. 

320  See: Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory 
collective redress mechanisms in the Member States concerning violations of rights granted under Union 
Law (2013/396/EU).  
321  See point 6.1 above.  
322  See point 6.5 below, but note the different ruling by Toruń District Court in its judgment of 6 August 2019, 

No. I C 469/18. See more information in Section 3.2.7 of this report. 

323  See interesting analyses on the burden of proof in the ETA commentary 2017, pp. 192-203. 

82 

 
 
 
 
 
 
 
 
 
 
The reversal of the burden of proof applies only to establishing discrimination, not to the 
severity  of  damages.  However,  the  court’s  assessment  of  the  extent  of  the  damage  or 
harm suffered should take into account all the circumstances of the case.324 

What  is  problematic,  as  documented  in  a  number  of  cases  brought  under  labour  law,  is 
that,  in  practice,  the  courts  in  most  cases  (but  not  all  cases;  this  seems  to  be  a 
problematic  issue)  expect  not  just  a  substantiation  of  the  probability  of  a  violation  but 
also that the particular ground of discrimination be demonstrated; parties sometimes do 
not mention the ground or may not even be aware of the ground of discrimination. Only 
then does the burden of proof shift to the employer.325 If the claimant is not able to show 
the particular ground of discrimination, the complaint might be dismissed.  

6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) 

In Poland, there are legal measures of protection against victimisation. 

The  ETA  introduced  a  general  prohibition  on  victimisation  (Article  17)  on  all  grounds 
protected  by  the  Act:  gender,  race,  ethnic  origin,  nationality,  religion,  belief,  political 
opinion,  disability,  age  and  sexual  orientation.  The  Law  provides  that  use  of  rights  to 
defend against unequal treatment (‘rights arising from a  breach of the principle of equal 
treatment’)  must  not  form  the  basis  for  adverse  treatment  and  must  not  cause  any 
negative  consequences  for  the  individual  (although  the  provision  refers  to  ‘person’,  this 
wording  has  never  given  rise  to,  nor  could  it  be  interpreted  to  cover,  the  limitation  of 
protection  from  victimisation  to  one  person  as  opposed  to  a  group  of  persons.). 326  The 
protection  goes  beyond  the  scope  of  the  Directive  and  extends  to  a  person  who  in  any 
way  supports  someone  exercising  their  rights327  (such  as  a  witness  or  a  person  helping 
the  victim  to  bring  a  complaint).328  In  the  case  of  victimisation,  the  victim  may  file  the 
same compensation claims as a victim of discrimination.329  

The Act also treats as unequal treatment, and prohibits, less favourable treatment on the 
basis of someone’s rejection of harassment or submission to harassment.330 

In  the  employment  field,  the  previous  provisions  continue  to  exist  simultaneously  with 
the  ETA.  The  prohibition  on  victimisation  was  substantially  broadened  in  the  2008 
amendment  to  the  Labour  Code  (in  force  since  18  January  2009).331  Previously,  the 
Labour  Code  prohibited  only  the  termination  of  a  labour  contract  as  the  result  of  an 
employee having used their rights to defend themselves against unequal treatment. This 
provision  was  amended  and  currently  any  other  adverse  treatment  and  any  other 
negative  consequences  are  prohibited  (Article  18(3e)(1)  of  the  Labour  Code).  This 
broadened  Labour  Code  protection  covers  complainants  but  also  extends  to  employees 
who in any way  support a victim  of discrimination (Article 18(3e)(2)). Courts’  rulings in 
Labour Code cases confirm this broad understanding.332 

In  addition,  in  relation  to  harassment,  the  amended  part  of  the  Labour  Code  states: 
‘Submission of an employee to harassment or sexual harassment, as well as the taking of 

324  Kędziora,  K.  and  Śmiszek,  K.  (eds.)(2017),  Ustawa  o  wdrożeniu  niektórych  przepisów  Unii  Europejskiej  w 
zakresie równego traktowania. Komentarz (Act on the implementation of certain provisions of the European 
Union in the field of equal treatment: commentary), Article 13.  

325  See, for instance, the following Supreme Court decisions: judgment of 10 May 2018, No.  I PK 54/17; 

judgment of 3 June 2014, No. III PK 126/13.  

326  Equal Treatment Act, 3 December 2010, Article 17(1).  
327  Equal Treatment Act, 3 December 2010, Article 17(2).  
328  See ETA commentary 2017, p. 232. 
329  Equal Treatment Act, 3 December 2010, Article 17(3) and Article 13. 
330  Equal Treatment Act, 3 December 2010, Article 3(5). 
331  Act on the amendment of the Act on the Labour Code, 21 November 2008. 
332  See examples of rulings in: Kułak, M. (2021), p. 36-37. 

83 

 
 
 
 
 
 
 
 
 
actions  rejecting  (counteracting)  harassment  or  sexual  harassment,  may  not  result  in 
any adverse consequences for the employee’ (Article 18(3a)(7)). 

6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) 

a) 

Applicable sanctions in cases of discrimination – in law and in practice 

The  ETA  introduces  a  general  rule  that  everybody  whose  right  to  equal  treatment  is 
infringed  has  the  right  to  compensation,  and  this  extends  beyond  employment  (Article 
13).  The  right  refers  to  both  natural  persons  (on  all  protected  grounds  by  the  Act)  and 
legal  persons  on  the  grounds  of  race,  ethnic  origin  and  nationality  (Article  12).  The  Act 
does not introduce a new procedure but refers to the general rules of the Civil Code and 
the Code of Civil Procedure (including injunction reliefs).333  

However,  the  ETA  refers  to  compensation  (odszkodowanie)  only,  which  covers  material 
but not non-material damage and therefore limits protection.334  

The  Civil  Code  provides  for  general  compensation  claims  for  material  and  non-material 
damage.  Article  415  et  seq.  set  out  the  general  terms  of  compensation  for  material 
damage. The compensation should cover all damage that occurs as a consequence of an 
unlawful  act  or  a  failure  to  act  by  the  person  who  discriminated  against  the  claimant. 
Articles  445  and  448  of  the  Civil  Code  regulate  pecuniary  damages  and  state  that 
damages  should  be  appropriate,  which  means  that  they  should  ensure  effective  redress 
of the damage suffered. Article 448  specifies that an appropriate  sum may be paid to a 
designated social cause (the court may decide, for instance, that a particular sum should 
be paid to an anti-discrimination CSO; claimants often request such a measure, naming a 
concrete cause or organisation). 

In addition, if there are cases not covered by the provisions of the ETA, it is also possible 
to seek to rely on the protection of personal rights described in Section 6.1. Among the 
actions that a  claimant may demand are pecuniary satisfaction and payment to a social 
cause. 

In the field of employment, Article 18(3d) of the Labour Code provides that a person who 
was the  subject  of discriminatory treatment by an employer is entitled to compensation 
not lower than the minimum wage as defined in separate laws (in 2020, a gross salary of 
PLN 2 600  (EUR 580)  per  month).  According  to  the  Supreme  Court,  ‘the  compensation 
claim  under  Article  18(3d)  of  the  Labour  Code,  includes  both,  compensation  of  material 
and non-material damage’.335  

Under  the  provisions  of  the  Labour  Code,  an  employee  whose  contract  was  terminated 
without  notice,  in  violation  of  the  regulations  for  terminating  labour  contracts,  has  the 
right to seek reinstatement on the same terms as before or compensation. The choice of 
solutions  lies  with  the  employee,  but  the  labour  court  rules  on  the  advisability  or 
possibility of the individual returning to work.336 

333  Equal Treatment Act, 3 December 2010, Articles 13(2) and 14(1). 
334  See interesting analyses on compensation in the ETA commentary 2017, pp. 192-203. Note also the 

different ruling by the Toruń District Court in its judgment of 6 August 2019, No. I C 469/18. See more 
information in Section 3.2.7 of this report. 

335  Supreme Court judgment of 9 May 2019, No. III PK 50/18; OSNP 2020/5, item 42; quoted in: ‘Protection 

against discrimination in Poland’ (2020), p. 27.  

336  Labour Code, 26 June 1974, Articles 56(1) and 45(2). See also the Supreme Court judgment of 9 February 
1999, No. I PKN 565/98 (OSNAPiUS 2000/6/225), which stated: ‘The necessity of hiring new employees 
with appropriate qualifications, which the claimant does not hold, speaks to the inadvisability of returning 
him to his job (Article 45(2), Labour Code).’ 

84 

 
 
 
 
 
 
 
 
 
 
 
An  employee  is  entitled  to  terminate  their  labour  contract  without  prior  notice  on  the 
basis  of  a  grave  infringement  by  the  employer  of  fundamental  obligations  towards  the 
employee.337  In  such  a  case,  the  employee  is  entitled  to  compensation  equal  to  their 
salary for the period of notice. 

The  Labour  Code  does  not  envisage  any  sanctions  for  violations  of  the  employer’s 
obligation to create an environment free from discrimination in the workplace, especially 
with  respect  to  gender,  age,  disability,  race,  religion,  nationality,  political  beliefs, 
membership  of  trade  unions,  ethnic  origin,  belief  and  sexual  orientation.338  In  light  of 
this, the provision takes on the character of a mere declaration. 

The  Employment  Act  provides  for  two  sanctions  in  the  case  of  conduct  contrary  to  the 
Act. First, anyone  running an employment agency (or similar services listed by the Act) 
who  does  not  comply  with  the  prohibition  of  discrimination  based  on  gender,  age, 
disability,  race,  religion,  ethnic  origin,  nationality,  sexual  orientation,  political  opinion, 
beliefs  or  membership  of  a  trade  union  is  liable  to  a  minimum  fine  of  approximately 
PLN 3 000  (EUR 700).339  Secondly,  anyone  who  –  on  the  same  grounds  –  refuses  to 
employ a candidate in  a vacant post or to accept an individual for vocational training is 
liable to the same fine.340  

In  addition,  criminal  sanctions  may  apply  if  the  discriminatory  treatment  constitutes  a 
criminal offence – such as, for instance, the public insult of individuals or groups due to 
their national, ethnic or racial origin. 

b) 

Compensation – maximum and average amounts 

There  is  no  maximum  amount  for  compensation.  Neither  the  compensation  clause 
provided by the Act on the Implementation of Certain Provisions of the European Union in 
the  Field  of  Equal  Treatment  (Article  13)  nor  the  Civil  Code  to  which  the  Act  refers 
envisage any ceiling on the maximum amount of compensation that can be awarded.  

In the Labour Code, there is no maximum threshold  for this  compensation, and a  court 
can  award  it  according  to  its  assessment  of  the  type  and  gravity  of  the  discriminatory 
treatment in a specific case. There is, however, a minimum compensation level, which is 
at least equal to the minimum wage (in 2020, a gross salary of PLN 2 600 (EUR 580) per 
month).341 

There  is  no  reliable  information  on  the  average  amount  of  compensation  available  to 
victims.  The  number  of  cases  in  which  compensation  was  given  is  still  small  but,  in 
general, courts tend to grant moderate compensation awards (the compensation range is 
usually  between  PLN 1 200  (EUR 300)  and  PLN 22 000  (EUR 5 000).  In  2013, 
compensation based on the ETA was awarded in only one case (approximately PLN 1 200 
(EUR 300)).342  In  2017,  compensation  based  on  the  ETA  was  awarded  in  the  case  of 
indirect  discrimination  because  of  political  opinion  (światopogląd).  The  court  of  second 
instance  changed  the  decision  of  the  court  of  first  instance  and  in  March  2017  awarded 
PLN 1 000  (EUR 250)  to  the  claimant  YZ  and  PLN 1 000  (EUR 250)  to  the  PTPA  as  the 
CSO  acting  on  his  behalf.  In  the  most  recent  case,  the  court  awarded  PLN 5 000 
(EUR 1 200) plus costs.343 

337  Labour Code, 26 June 1974, Article 55(1).  
338  Labour Code, 26 June 1974, Article 94(2b). 
339  Employment Act, 20 April 2004, Article 121(3). 
340  Employment Act, 20 April 2004, Article 123. 
341  The level of the minimum wage is set each year by the Regulations on the Minimum Wage.  
342  Ombud, annual report for 2013, p. 92.  
343  Toruń District Court, judgment of 6 August 2019, No. I C 469/18; see more information in Section 3.2.7 of 

this report. 

85 

 
 
 
 
 
 
 
 
 
 
Generally,  in  civil  cases,  the  level  of  compensation  awarded  for  ‘moral  loss’  or 
‘suffering’344  resulting  from  discrimination  is  rather  low.  There  is  no  tradition  of  valuing 
this  type  of  loss,  and  different  judges  use  different  methods  to  calculate  it.  There  are 
Supreme  Court  rulings  which  give  only  general  guidelines  –  the  court  should  take  into 
consideration  the  living  conditions  of  the  party,  average  standards  of  living  and  the 
state’s  level  of  economic  development.345  The  law  grants  discretion  to  judges,  stating 
that they should determine ‘an appropriate amount’346 for moral loss and suffering. This 
judicial  independence  is  supported  by  the  Supreme  Court,  which  leaves  the  level  of 
compensation  to  be  awarded  solely  to  the  discretion  of  the  judges  deciding  particular 
cases.347  

In  one  of  the  recent  labour  cases,  the  Supreme  Court  stated  that  circumstances  on  the 
employer’s side that the court should take into account when determining the amount of 
compensation  as  an  effective,  proportionate  and  dissuasive  sanction  include:  ‘The 
frequency  and  duration  of  discriminatory  practices,  their  possible  accumulation  and 
degree of severity, whether they constitute direct or indirect discrimination, the degree of 
the  employer’s  fault  or  generally  its  attitude  towards  the  discriminated  person  or  the 
group  of  employees  to  which  s/he  belongs,  in  particular  whether  it  is  not  the  result  of 
prejudices  and  stereotypes,  the  employer’s  position  in  the  labour  market,  its  official 
declarations regarding its anti-discrimination policy in relation to employed women or the 
size and financial status of the employer’’.348 

c) 

Assessment of the sanctions 

As already mentioned in point a) above, the Polish system of compensation for damage is 
essentially  based  on  the  concept  of  redressing  damage.  The  ETA  refers  to 
‘compensation’,  using  a  term  which  is  generally  interpreted  as  covering  only 
compensation  for  material  damage  [odszkodowanie],  although  civil  law  in  general 
differentiates  between  compensation  for  material  damage  and  for  non-material  damage 
[zadośćuczynienie] and regulates the two separately. This was pointed out by the Ombud 
in June 2012 in its first report. In the Ombud’s view, the compensation  provision  under 
the  Act  should  be  widened  to  include  non-material  damage.349  The  relevant  legislative 
amendments were also proposed in two draft laws (neither of which were passed).  

There  are,  however,  also  interpretations  that  state  that  ‘compensation’  under  the  ETA 
should cover non-material damage, as it should be read in line with the Directives (non-
material  damage  should  be  covered,  even  though  the  provision  mentions  only 
‘compensation’, or it should be covered by using the general provisions of the civil law to 
which the ETA refers). This is also the current position of the Ombud, which regrets that 
courts sometimes do not see it this way.350  

In the first case351 decided under Article 13 of the ETA, the court of first instance found 
that  there  had  been  discrimination  by  association  and  awarded  the  claimant 
compensation.  The  court  differentiated  between  material  and  non-material  damages, 
underlining that Article 13 covers both; however, it awarded only material damages and 
refused  to  grant  non-material  damages.  The  claimant  appealed  against  the  ruling, 
arguing  that  Article  13  of  the  ETA  should  be  read  together  with  Article  17  of  Directive 

344  Civil Code, 23 April 1964, Articles 445 and 448.  
345  See e.g. Supreme Court, judgment of 29 May 2008, No. II CSK 78/2008; judgment of 12 July 2012, No. V 

CKN 1114/2000. 

346  Civil Code, 23 April 1964, Article 445. 
347  Supreme Court, judgment of 4 February 2008, No. III KK 349/2007. 
348  Supreme Court, judgment of 9 May 2019, No. III PK 50/18, OSNP 2020, nr 5, item 42. 
349  Ombud, Bulletin 2012/2, pp. 78-79. 
350  Ombud, annual report for 2016, pp. 155-156. 
351  Warsaw Śródmieście District Court, judgment of 9 July 2014, XY and Polish Society of Anti-discrimination 
Law on behalf of XY v. Company Z, No. VI C 402/13; Warsaw Regional Court (second instance), judgment 
of 18 November 2015, No. V Ca 3611/14 (not published). 

86 

 
 
 
 
 
 
 
2000/78/EC. The claimant argued that, due to mistaken interpretation, the national court 
did  not  impose  a  sanction  that  could  be  understood  as  effective,  dissuasive  and 
proportionate. The second instance court stressed that the ETA does not differentiate in 
Article  13  between  material  and  non-material  damages  and  that  by  doing  so,  the  first 
instance court made a mistake. The second instance court suggested that referral to the 
Civil Code (which includes non-material damages) should be used, but at the same time 
the court decided that the amount of the damages awarded was adequate. The lack of an 
adequate  number  of  cases  based  on  the  ETA  does  not  allow  for  a  clear  line  of  judicial 
interpretation. 

In  the  case  of  discrimination  by  association  (described  in  section  2.1.3.b  above)352  the 
court  of  first  instance  found  that  there  had  been  discrimination  by  association  and 
awarded  the  claimant  PLN 2 500  (EUR 625)  for  material  damages  only  and  refused  to 
grant  non-material  damages.  The  claimant  appealed  against  the  ruling,  arguing  that 
limiting  the  compensation  to  material  damages  only  contradicted  the  duties  of  the  EU 
Member  States  (Article  13  of  the  ETA  read  together  with  Article  17  of  Directive 
2000/78/EC). The claimant argued that, due to this mistaken interpretation, the national 
court  did  not  impose  a  sanction  that  could  be  understood  as  effective,  dissuasive  and 
proportionate. The second instance court dismissed the appeals of both parties. The court 
stressed  that  the  ETA  does  not  differentiate  in  Article  13  between  material  and  non-
material  damages  and  that  by  doing  so,  the  first  instance  court  made  a  mistake. 
However,  without  going  into  details  and  discussing  the  proportionality  and  dissuasive 
nature of the sanction, the court declared that, in regard to compensation, ‘the amount is 
adequate and sufficiently compensates for the damage’.  

However, in the  case decided in 2019, the court awarded compensation under the ETA, 
arguing  that  the  relevant  provision  also  covers  non-material  damage  –  in  the  specified 
case,  damage  to  the  dignity  of  the  party.353  Similarly,  in  2020,  the  Regional  Court  in 
Warsaw stated that ‘art. 13 on compensation should be interpreted in such a way that it 
compensates not only for pecuniary damage, but also non-pecuniary damage. This is the 
purpose  of  the  directives  that  the  Equal  Treatment  Act  implements,  and  it  also  stems 
from the case law of the Court of Justice of the EU’.354 

352  Warsaw Śródmieście District Court, judgment of 9 July 2014, XY and Polish Society of Anti-discrimination 
Law on behalf of XY v. Company Z, No. VI C 402/13; Warsaw Regional Court (second instance), judgment 
of 18 November 2015, No. V Ca 3611/14 (not published). 

353  Toruń District Court, judgment of 6 August 2019, No. I C 469/18; see more information in section 3.2.7 of 

this report.  

354  Warsaw Regional Court, judgment of 29 September 2020 r., No. V Ca 2686/19 (nonpublished), quoted in: 

‘Protection against discrimination in Poland’ (2020), p. 26. 

87 

 
 
 
 
7 

a) 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) 

Body  designated  for  the  promotion  of  equal  treatment  irrespective  of  racial/ethnic 
origin according to Article 13 of the Racial Equality Directive 

After years of a lack of an equality body in Poland, the 2010 Act on the Implementation 
of  Certain  Provisions  of  the  European  Union  in  the  Field  of  Equal  Treatment  finally 
designated  as  an  equality  body  the  existing  Ombud’s  Office  –  as  mentioned,  above,  its 
official  name  is  the  Commissioner  for  Human  Rights355  (Rzecznik  Praw  Obywatelskich). 
The Act appropriately amended the original Act on the Commissioner for Human Rights, 
introducing new competences for the Ombud. The Ombud took on its new responsibilities 
on 1 January 2011.  

The  second  institution  which  has  a  mandate  to  promote  equal  treatment  of  everyone 
without  discrimination  based  on  racial  or  ethnic  origin  (among  other  grounds)  is  the 
Government Plenipotentiary for Equal Treatment – a body in charge of non-discrimination 
policies and the coordination of governmental efforts rather than an equality body. Since 
2016,  the  function  of  the  Government  Plenipotentiary  for  Equal  Treatment  has  been 
conducted  by  a  new  Plenipotentiary  who  was  appointed  to  combine  two  positions  –  the 
second  was  the  newly  created  position  of  Government  Plenipotentiary  for  Civil  Society 
(Pełnomocnik Rządu do spraw Społeczeństwa Obywatelskiego).356 In February 2020, the 
office of the  Plenipotentiary  for Equal Treatment was again  separated from the office of 
the Government Plenipotentiary for Civil Society and moved from the Chancellery of the 
Prime  Minister  to  the  Ministry  of  Family  and  Social  Policy  (and  on  5  March  2020,  the 
deputy  Minister  was  appointed  to  the  function  of  the  Plenipotentiary  for  Equal 
Treatment). The relevant Article 20(3) of ETA was amended.357  

b)   Political, economic and social context of the designated body 

There  is  evidence  of  recent  political  hostility  to  the  governance  of  the  designated  body. 
After  the  parliamentary  elections  in  October  2015  and  shifts  within  the  Government  in 
the years 2016-2020, the Ombud faced various political attacks (including calls and even 
campaigns demanding that the  current  Ombud’s appointment should be  revoked by the 
Parliament because he represents liberal-leftist views, supports LGBT people etc.). Both, 
politicians358  (as  confirmed  by  the  spokeswoman  for  the  ruling  party)359  and  the  legal 
think-tank  Ordo  Iuris360  gave  voice  to  this  view.  Senior  Government  officials  and 
members of Parliament from the ruling party have, on many occasions (including in the 
Parliament  during  discussions  on  the  Ombud’s  proposed  budget  and  annual  information 
on activities), attacked Dr Adam Bodnar, the current Ombud. They have accused him of 
not  remaining  neutral  and  of  being  politically  engaged  (the  Ombud  defends  the 

355  The Office of the Ombud has also referred to itself in English as the Human Rights Defender, although 

‘Commissioner for Civil Rights Protection’ is a more accurate translation of the Polish title ‘Rzecznik Praw 
Obywatelskich’.  

356  Council of Ministers, Ordinance on the Government Plenipotentiary for Civil Society (Rozporządzenie Rady 
Ministrów z dnia 8 stycznia 2016 r. w sprawie ustanowienia Pełnomocnika Rządu do spraw społeczeństwa 
obywatelskiego), 8 January 2016.  

357  Therefore, contrary to recommendations (e.g. in CERD (2019), Concluding observations on the combined 
twenty-second to twenty-fourth periodic reports of Poland), the position of the Plenipotentiary has been 
additionally weakened. See Law of 23 January 2020 amending the Act on Government Administration 
Departments and some other acts (ustawa z 23 stycznia 2020 r. o zmianie ustawy o działach administracji 
rządowej oraz niektórych innych ustaw) (Dz.U. z 2020, poz. 284), Article 70. See also: 
https://www.gov.pl/web/rodzina/anna-schmidt-rodziewicz-nowym-wiceministrem-rodziny-pracy-i-polityki-
spolecznej. 

358  See: https://oko.press/pieta-chce-odwolac-bodnara/; https://wiadomosci.wp.pl/w-pis-pojawil-sie-pomysl-

odwolania-adama-bodnara-to-skutek-materialu-wiadomosci-tvp-6056077225185921a.  

359  See: http://300polityka.pl/news/2016/11/05/po-wypowiedzi-mazurek-do-odwolania-bodnara-potrzeba-35-

glosow-pis-musialoby-szukac-wsparcia-u-opozycji/.  

360  See: http://www.maszwplyw.pl/adam-bodnar-musi-odejsc-,57,k.html.  

88 

 
 
 
 
 
 
 
independence  of  the  judiciary,  which  is  openly  attacked  and  undermined  by  the  ruling 
Law and Justice Party) as well as accusations such as treason, reporting to international 
human rights bodies and focusing too much on anti-discrimination issues.  

During the past five years, since the change of Government, there have been significant 
developments regarding the budget.  For instance, during the meetings of  parliamentary 
commissions, MPs from the ruling party expressed their concerns regarding the policy of 
the  Ombud.  They  underlined  their  dissatisfaction  that  the  Ombud  had  appointed  a 
‘gender  expert’ as a deputy.  The budget in 2017 was  PLN 37 180 000 (EUR 8 850 000), 
while  the  Commissioner  had  applied  for  PLN 41  million  (EUR 9 750 000).  A  similar 
‘critique’ was also formulated by the Parliamentary Committee on Justice, which issued a 
negative  opinion on the draft budget for 2018.361 MPs from the  ruling coalition attacked 
the  Ombud  for  being  focused  ‘on  pathological  groups’  (by  which  they  meant  LGBTI 
people).  Every  year,  the  proposed  budget  prepared  by  the  Ombud  is  cut  by  the 
Parliament.  In  the  2019  budget,  there  was  a  slight  increase  from  the  2018  budget,  but 
the  overall  amount  was  still  lower  than  requested,  by  approximately  PLN 7.2  million 
(EUR 1.6  million).  The  budget  for  2020  represented  an  increase;  however,  this  was 
mainly for spending on building renovation, not the daily activity of the Ombud’s Office. 
In 2020, the Ombud received 20 % more complaints. In the most recent budget passed, 
for  2021,  the  amount  is  still  smaller  than  the  budget  for  2013.362  In  the  opinion  of  the 
Ombud, the resources provided for the Office are not adequate for the realisation of the 
Ombud’s designated tasks.363 

Changes  in  the  Ombud’s  budget364  (the  exchange  rate  for  EUR  changes,  but  as  of  31 
December 2020, EUR 1 = PLN 4.61).  
2013 – PLN 37 175 mln (EUR 8 063 mln) 
2014 – PLN 37 353 mln (EUR 8 102 mln) 
2015 – PLN 37 761 mln (EUR 8 191 mln) 
2016 – PLN 34 022 mln (EUR 7 380 mln) 
2017 – PLN 34 464 mln (EUR 7 475 mln) 
2018 – PLN 34 561 mln (EUR 7 496 mln) 
2019 – PLN 35 258 mln (EUR 7 648 mln) 
2020 – PLN 37 105 mln (EUR 8 048 mln) 
2021 – PLN 36 485 mln (EUR 7 914 mln) 

Moreover, if one compares the various public institutions, it is clearly noticeable that the 
budgets of the others are increasing significantly. The Ombud’s Office is probably the last 
to  still  face  such  financial  restraints  (after  the  Constitutional  Tribunal  was  –  as  experts 
have stated – taken over by the ruling party and its budget increased as a result).365  

The  financial  difficulties  of  the  Ombud  were  also  recognised  by  CERD  in  its  2019 
Concluding  observations  report  on  Poland.366  It  stated:  ‘The  Committee  remains 
concerned  about  the  insufficient  human  and  financial  resources  allocated  to  the 
Commissioner, in particular to its Department of Equal Treatment, which put in jeopardy 
its  ability  to  fulfil  its  mandates’,  and  that:  ‘The  Committee  recommends  that  the  State 
party provide the Commissioner for Human Rights of Poland, in particular its Department 

361  See: https://www.rpo.gov.pl/en/content/parliamentary-committee-justice-issued-negative-opinion-

chr%E2%80%99s-draft-budget-2018.  
362  Ombud, annual report for 2020, p. 10. 
363  All budgetary information provided is based on information prepared by the Ombud’s Office.  
364  See: https://bip.brpo.gov.pl/pl/content/budzet-rpo-na-rok-2021-%C2%A0informacja.  
365  See, for instance: http://www.tvpparlament.pl/aktualnosci/wzrost-dochodow-budzetu-pozwoli-na-realizacje-
ambitnych-planow/39319447 and http://www.tokfm.pl/Tokfm/7,103085,24911449,wolny-jak-trybunal-
konstytucyjny-sa-sprawy-ktore-czekaja-juz.html.  

366  CERD, Concluding observations on the combined twenty-second to twenty-fourth periodic reports of Poland, 

24 September 2019, available at: 
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD/C/POL/CO/22
-24&Lang=En. 

89 

 
 
 
 
 
 
of  Equal  Treatment,  with  the  human  and  financial  resources  necessary  to  enable  it  to 
fully discharge its mandates in an independent and impartial manner.’ 

The numerous attacks  on the  Ombud created  defensive reactions in circles that support 
this  office.  Therefore,  for  the  past  five  years,  both  supportive  and  hostile  voices  have 
been heard.  

The campaign by Ordo Iuris to revoke the appointment of the Ombud was signed by over 
35 000  people.  The  first  sentence  of  its  manifesto  reads:  ‘One  cannot  be  silent  when  a 
constitutional  human  rights  body  is  opposed  to  fundamental  freedoms  and  rights 
guaranteed in the Constitution of the Republic  in the name of the particular interests  of 
the LGBT subculture. The events of recent months show that radical social activist Adam 
Bodnar has failed to cope with the difficult mission of impartiality to guard our rights and 
freedoms.’  It  then  lists  various  actions  of  the  Ombud  and  concludes:  ‘All  these  actions 
demonstrate  that  the  Ombud’s  biased  commitment  to  the  ideology  of  LGBT  leads  to 
violations of constitutional freedoms and the rights of ordinary people. Therefore, we ask 
for a strong response from the Sejm and the Senate of the Republic of Poland, who are 
entitled to dismiss the Ombud, who has misrepresented the complex vow and dignity  of 
the  office.  Poles  need  an  Ombud  who  will  not  be  a  soldier  of  radical  ideology  but  a 
defender of the rights of all citizens.’367 The political decision to revoke the appointment 
of the Ombud has not yet been taken. However, this would need a three-fifths majority 
in the Parliament, which the ruling parties do not have.  

In  reaction  to  the  Ordo  Iuris  proposition  (even  if  it  was  not  representative)  and  attacks 
by  politicians,  the  CSO  Akcja  Demokracja  (Action  Democracy)  started  a  campaign  of 
support.  For  instance,  citizens  are  encouraged  to  send  postcards  of  support  to  the 
Ombud’s  Office,  or  sign  petitions  defending  him  (over  50 000  signatures  were  recorded 
as of December 2018).368  

c)  

Institutional architecture  

In Poland, the designated body forms part of a body with multiple mandates.  

The  Ombud,  also  known  as  the  Polish  Commissioner  for  Human  Rights,  holds  four 
different mandates: 

1.   Role  of  the  National  Human  Rights  Institution  (NHRI)369  –  general  mandate,  since 

1988; 

2.   National Preventive Mechanism – mandate since 2008; 
3.   Equality Body – mandate since 2011; 
4.  

Independent Monitoring Mechanism in reference to the UNCRPD – since 2013, after 
ratification of the UNCRPD in 2012.  

The Ombud has been the general human rights institution since 1998 and in recent years 
has  employed  circa.  300  employees  (around  285  full-time  positions,  but  with  some 
employees working part time). In 2011, the Anti-Discrimination Law Section was created 
within the Department of Constitutional and International Law, and by 2013 it employed 
nine people. In 2015, significant changes took place. The new Ombud, Dr Adam Bodnar, 
assumed office in September 2015. He appointed for the first time a deputy responsible 
for equal treatment issues.370  A new Equal Treatment Department was established, with 

367  See: http://www.maszwplyw.pl/adam-bodnar-musi-odejsc-,57,k.html.  
368  See: https://dzialaj.akcjademokracja.pl/campaigns/bodnar.  
369  Compliant with the United Nations standards on National Human Rights Institutions as set out in the Paris 

Principles. The Office of the Ombud holds ‘A’ status under the Paris Principles.  

370  However, in February 2019, the Deputy Ombud resigned and became a Member of the European 

Parliament. A new person was not appointed to the post, and the Equal Treatment Department became the 
only department that is supervised directly by the Ombud and not by a deputy. 

90 

 
 
 
 
 
 
 
 
 
 
two units: the Discrimination Law Unit (Wydział Prawa  Antydyskryminacyjnego) and the 
Migrants’  and  National  Minorities’  Rights  Unit  (Wydział  Praw  Migrantów  i  Mniejszości 
Narodowych).371  

In total, there are 12 members of staff working on the equality mandate (of a total staff 
of circa. 300 in the Ombud’s Office).  

There  is  no  reliable  information  available  on  the  part  of  the  budget  allocated  to  the 
equality mandate. There is an (internal) budget category designated as ‘Equal Treatment 
Mechanism’ with more or less the same situation and tasks; it was calculated as covering 
the cost of 33 persons in 2016 and of 12 persons in 2017. Difficulties stem from the fact 
that certain discrimination cases are dealt with by other thematic departments and teams 
in the Ombud’s Office, therefore one may only attempt to estimate this cost. 

d) 

Status of the designated body – general independence 

i)  

Status of the body 

The Ombud is an independent body and is accountable to the Parliament.372 The Ombud 
is appointed by the Sejm, subject to the approval of the Senate, for a five-year term.  
The  Ombud’s  Office  (the  Commissioner  for  Human  Rights)  is  a  national  human  rights 
institution with additional mandates. 

The  Ombud  informs  the  Sejm  and  the  Senate  annually  on  its  activities  and  the  reports 
are  available  to  the  public.373  From  2012,  as  a  separate  part  of  the  annual  report,  the 
Ombud  has  also  prepared  an  additional  report  on  activities  relating  to  equality  and 
discrimination.  Since  2018,  the  Ombud  has  published  a  general  report  with  a  new 
structure referring to the constitutional provisions, and information on equal treatment is 
therefore  scattered  throughout  the  report.  However,  a  separate  report  on  equal 
treatment was still being published till 2020.374  

371  Ombud, annual report for 2015, pp. 11-12; annual report for 2016, p. 15, annual report for 2018, p. 14. 
372  Act on the Commissioner for Human Rights, 15 July 1987, Articles 3, 5 and 7. 
373  Comprehensive information about the activities of the Ombud is prepared annually for Parliament and is 

available in printed form and on its website (www.rpo.gov.pl); summaries of the reports are also available 
in English at: http://rpo.gov.pl/en.  

374  Ombud (2021), Information on the activities of the Commissioner for Human Rights and on the observance 
of human rights and freedoms in the year 2020 (Informacja o działalności Rzecznika Praw Obywatelskich 
oraz o stanie przestrzegania wolności i praw człowieka i obywatela w roku 2020), Warsaw [referred to in 
this report as ‘Ombud, annual report for 2020’]. 

  Ombud (2020), Information on the activities of the Commissioner for Human Rights and on the observance 
of human rights and freedoms in the year 2019 (Informacja o działalności Rzecznika Praw Obywatelskich 
oraz o stanie przestrzegania wolności i praw człowieka i obywatela w roku 2019), Warsaw [referred to in 
this report as ‘Ombud, annual report for 2019’]. 

  Ombud (2019), Information on the activities of the Commissioner for Human Rights in the field of equal 
treatment in 2018 and on the observance of the principle of equal treatment in the Republic of Poland 
(Informacja o działalności Rzecznika Praw Obywatelskich w obszarze równego traktowania za rok 2018 oraz 
o przestrzeganiu zasady równego traktowania w Rzeczypospolitej Polskiej) Warsaw [referred to in this 
report as ‘Ombud, annual report for 2018’]. The Polish version quoted in this report was received as the 
final, but not yet published, version from the Ombud’s Office in June 2019. 

  Ombud (2018) Information… [referred to in this report as ‘Ombud, annual report for 2017’]. 
  Ombud (2017) Information… [referred to in this report as ‘Ombud, annual report for 2016’]. The Polish 
version quoted in this report was received as the final, but not yet published, version from the Ombud’s 
Office in June 2017.  

  Ombud (2016) Information… [referred to in this report as ‘Ombud, annual report for 2015’].  
  Ombud (2015) Information… [referred to in this report as ‘Ombud, annual report for 2014’].  
  Ombud (2014) Information… [referred to in this report as ‘Ombud, annual report for 2013’]. The Polish 

version quoted in this report was published on the website of the Ombud in June 2014; an English version of 
the report was also published later, available at: http://rpo.gov.pl/en/. 

  Ombud (2013) Information… [referred to in this report as ‘Ombud, annual report for 2012’] The version 

quoted in this report was published by the Polish Senate on 22 April 2013; see: 
http://www.senat.gov.pl/gfx/senat/userfiles/_public/k8/dokumenty/druki/300/345.pdf. In June 2013, the 

91 

 
 
 
 
 
 
 
 
 
In theory, the appointment of an Ombud might be revoked by the Parliament. The Sejm 
and the Senate are entitled to dismiss an Ombud ‘who has misrepresented the complex 
vow and dignity of the office’; such a decision would require a three-fifths majority in the 
Parliament.  

The budget of the  Ombud’s Office comes from the central state budget and is approved 
by Parliament.  

The Ombud appoints Deputy Ombuds and recruits staff within the given budget.  

ii) 

Independence of the body 

The Ombud is an independent body and is accountable to the Parliament.375 The Ombud’s 
Office  is  independent  of  other  state  administration  bodies  and  in  practice  performs  its 
duties independently.  

In  addition,  the  ETA  (which  amends  the  Act  on  the  Commissioner  for  Human  Rights) 
emphasises  that  activities  relating  to  equal  treatment  are  to  be  undertaken 
independently. 

The Ombud can definitely be considered to be independent in practice, as the situation of 
the  current  Ombud  (Adam  Bodnar)  proves.  The  Ombud  has  remained  independent, 
despite facing political attacks and pressure from the Government.  

e)  Grounds covered by the designated body 

The  Act  on  the  Commissioner  for  Human  Rights  does  not  list  any  grounds  (the  same 
applies  to  the  Constitution),  so  the  activities  of  the  Ombud  are  not  limited  to  given 
grounds.  However,  according  to  the  ETA  (Articles  1  and  18),  which  designated  the 
Ombud  as  an  equality  body,  the  protected  grounds  are  gender,  race,  ethnic  origin, 
nationality,  citizenship,376  religion,  belief,  political  opinion,  disability,  age  and  sexual 
orientation.  

Due  to  a  shortage  of  funds,  it  is  difficult  for  the  Ombud  to  manage  its  work  so  as  to 
ensure that adequate and appropriate expertise and attention are given to each ground. 
Therefore, although the Ombud tries to deal adequately with all the grounds, it also sets 
certain priorities.  

It  can  be  seen  that  each  ground  is  dealt  with  by  the  Ombud’s  office.  However,  it  is 
noticeable that there is a very small intake of complaints regarding discrimination based 
on religion and belief.  

f) 

Competences of the designated body – and its independent exercise 

The  Ombud  is  the  institution  which  possesses  the  strongest  instruments  to  intervene  in 
cases of discrimination. 

Ombud published the final version on its website, with the same content but with a different format and 
page numbering, available at: http://rpo.gov.pl. 

  Ombud, ‘Information on activities of the Commissioner for Human Rights in the field of equal treatment in 
2011 and on the observance of the principle of equal treatment in the Republic of Poland’ (‘Informacja o 
działalności Rzecznika Praw Obywatelskich w obszarze równego traktowania w roku 2011 oraz o 
przestrzeganiu zasady równego traktowania w Rzeczypospolitej Polskiej’) Bulletin 2012/2 (Biuletyn 
Rzecznika Praw Obywatelskich 2012, nr 2) Warsaw, June 2012, p. 79, available at: http://rpo.gov.pl/. 
[referred to in this report as ‘Ombud, Bulletin 2012/2’].  

375  Act on the Commissioner for Human Rights, 15 July 1987, Articles 3, 5 and 7. 
376  Protection is limited to certain categories of persons only. Discrimination on grounds of citizenship as such is 

not prohibited in the ETA. See more in Section 2.1. 

92 

 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
According  to  the  Constitution,  everyone  has  the  right  to  apply  to  the  Ombud  for 
assistance  in  protecting  their  freedoms  or  rights  if  those  are  infringed  by  public 
authorities.377 The scope of the Ombud’s activities is very broad (protecting human rights 
and  freedoms  and  citizens’  rights  and  freedoms).  Although  the  issue  of  the  different 
dimensions  of  discrimination  on  all  grounds  has  formed  part  of  its  activities  from  the 
beginning, this has not been a priority issue. 

The  ETA  changed  the  situation  (by  amending  the  Act  on  the  Commissioner  for  Human 
Rights) and widened the scope of the competences of the Ombud’s Office by adding that 
the Ombud must also protect the execution of the principle of equal treatment, as well as 
by  listing  new  competences  as  required  by  the  Directives.  The  competences  of  the 
Ombud  in  relation  to  equal  treatment  and  individual  complaints  are  as  follows.378  The 
Ombud:  

- 
- 
- 

- 

- 

- 
- 
- 

- 

- 

- 

issues 

independent  reports  and  recommendations  regarding 

safeguards the observation of the equal treatment principle; 
analyses, monitors and supports the equal treatment of everyone; 
prepares  and 
discrimination-related problems; 
does  not  have  the  right  of  legislative  initiative,  but  can  apply  to  the  competent 
authorities for a legislative initiative to be undertaken, or to have a legal act issued 
or amended; 
cooperates  with  civil  society,  associations  and  foundations  acting  in  the  area  of 
equal treatment; 
provides support to the victims of discrimination; 
examines facts described by a complainant; 
can  apply  to  another  state  audit  institution  for  examination  of  a  case  if  it  is 
established that the principle of equal treatment has been violated; 
applies  to  the  competent  authorities  for  the  rectification  of  a  violation  and 
subsequently monitors the implementation of any recommendations; 
can require that preparatory proceedings be initiated and participate in all ongoing 
civil or administrative proceedings; 
in cases where only private entities are involved, the Ombud can indicate the legal 
measures to which a given person is entitled. 

The ETA also formulated some additional competences of the Ombud’s Office. It provides 
that  the  Ombud,  in  its  implementation  of  the  principle  of  equal  treatment,  should: 
analyse,  monitor  and  support  the  equal  treatment  of  everyone;  conduct  independent 
surveys  of  discrimination;  prepare  and  publish  independent  reports;  and  issue 
recommendations regarding discrimination issues.379 

In  practice,  the  competences  of  the  Ombud  are  exercised  in  an  independent  manner. 
However,  the  opinion  is  voiced  in  public  debate  that  the  fact  that  the  Ombud  is 
responsible  for  all  human  rights  issues  limits  its  activities  regarding  discrimination,  and 
that a body dedicated solely to discrimination issues could do much more. On the other 
hand,  it  must  be  admitted  that  the  situation  is  much  better  in  comparison  with  the 
situation prior to 2011, when there was no designated equality body.  

377  Constitution of the Republic of Poland, 2 April 1997, Article 80, available at: 

http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-republic-of-poland/. 

378  See https://www.rpo.gov.pl/en/content/what-does-commissioner-human-rights-do; for more detail, see Act 
on the Commissioner for Human Rights, 15 July 1987, available at: https://www.rpo.gov.pl/en/content/act-
commissioner-human-rights. 

379  Act on the Commissioner for Human Rights, 15 July 1987, Article 17b. 

93 

 
 
 
 
 
 
 
 
 
 
i)  

Independent assistance to victims 

The Ombud has the competence to provide independent assistance to victims. However, 
as  already  mentioned,  according  to  the  Constitution  and  the  ETA,  these  competences 
refer  to  a  vertical  understanding  of  human  rights  (the  relationship  between  a  public 
authority  and  an  individual)  and  are  limited  where  conflicts  between  private  parties  are 
concerned. In such cases, according to the law, the Ombud can only provide victims with 
information  on  their  rights  and  possible  actions.380  In  reality  however,  the  Ombud 
occasionally tries to intervene in cases between private parties (directly – for instance, by 
sending a letter to the enterprise concerned – or indirectly, by contacting other relevant 
public  agencies  and  urging  them  to  intervene).  Whether  the  Ombud’s  competences 
(‘providing victims with information on their rights and possible actions’) comply with the 
Racial Equality Directive requiring ‘independent assistance to victims of discrimination in 
pursuing  their  complaints’  is  controversial.  The  Ombud  itself  criticises  the  limitations  of 
its  power  and  advocates  for  changes  to  the  law.381  M.  Kułak  argues  that  providing 
information  means  less  than  providing  assistance  required  by  the  directives,  and 
therefore the implementation is not adequate.382 

These  limitations  have  also  been  noted  by  international  bodies.  CERD,  in  its  2019 
Concluding  observations,  stated  that  it  ‘remains  also  concerned  that  the  Commissioner 
has no statutory mandate to investigate complaints from victims of  racial discrimination 
concerning  incidents  occurring  in  the  private  sector’  and  recommended  ‘that  the  State 
party  amend  its  legislation  to  provide  the  Commissioner  with  the  statutory  mandate  to 
investigate cases of racial discrimination both in the public and private sectors’.  

In general, the Ombud’s decision as to whether to provide assistance to an individual is 
discretionary.  When  accepting  a  case,  the  Ombud  may  carry  out  its  own  fact-finding 
investigation  or  request  the  competent  institutions  (supervisory  bodies,  prosecutor’s 
offices, state bodies or occupational inspectorates) to examine the case or part of it. The 
Ombud  can  also  request  the  Sejm  to  order  the  Supreme  Audit  Office  (Najwyższa  Izba 
Kontroli) to carry out an inspection in order to examine the case or part of it.383  

In  practice,  this  competence  is  effectively  exercised  in  an  independent  manner.  The 
Ombud  itself  decides  to  whom  it  provides  assistance  and  what  kind  of  assistance  is 
provided.  The  fact  that  the  Ombud  does  this  despite  criticism  and  other  pressures  is 
proof of its independence.  

Since  the  Ombud’s  decision  as  to  whether  to  provide  assistance  to  an  individual  is 
discretionary,  the  Ombud’s  Office  does  not,  due  to  its  limited  resources,  offer  legal 
assistance to everyone. It chooses cases of a strategic nature for litigation. Once a result 
is achieved, other interested complainants who have similar problems are advised to rely 
on  the  previous  case  and  the  argumentation  formulated  therein.  The  Ombud  does  not 
provide information on the criteria used to decide on cases for strategic litigation. 

For  instance,  the  Ombud  pursued  the  case  of  a  parent  who  was  not  given  an  adequate 
refund  for  delivering  a  child  with  disabilities  to  school.  The  municipality  paid  for  two 
journeys per day, while the parent made four journeys per day (two to deliver the child 
to  school  and  twice  to  take  the  child  back  home).  The  Ombud  won  the  case,  and  other 
parents  in  similar  situations  approached  the  Office  for  the  assistance.  Rather  than  the 
Ombud  taking  on  their  cases,  they  were  simply  instructed  that  they  should  proceed 
themselves.  

380  Act on the Commissioner for Human Rights, 15 July 1987, Article 11. 
381  See annual Ombud reports. See also ETA commentary 2017, pp. 259-261. 
382  M.Kułak, (2021), pp. 45-47.  
383  Act on the Commissioner for Human Rights, 15 July 1987, Article 12. 

94 

 
 
 
 
 
 
 
 
 
 
ii) 

Independent surveys and reports 

The  Ombud  has  the  competence  to  conduct  independent  surveys  and  publish 
independent  reports.384  Aside  from  examining  individual  cases,  the  Ombud  may  also 
commission  expert  assessments  and  opinions  as  well  as  publish  information  about  the 
types  of  cases  that  it  deals  with,  including  recommendations.  Furthermore,  the  Ombud 
may  also  establish  thematic  expert  teams  and  ask  them  for  reports  on  specific  issues. 
The  expert  committees  on  People  with  Disabilities,  the  Rights  of  Elderly  People  and  the 
Rights  of  Migrants  were  the  first  of  these  to  be  set  up.385  Others,  such  as  the  expert 
committees  on  Mental  Health  Protection,  Deaf  People,  Health  and  Counteracting 
Homelessness, then followed. 

In 2011, the Ombud also started commissioning research (mainly desk-based rather than 
empirical research) and published several reports (the authors of these reports included 
their own recommendations). The Ombud also formulates recommendations, both in the 
process of its daily work (usually within ‘general statements’) and in the annual reports. 
Thematic reports in ‘The principle of equal treatment – law and practice’ series (‘Zasada 
Równego  Traktowania.  Prawo  i  praktyka’)  published  by  the  Ombud  in  recent  years 
include: 

- 

- 

- 

- 
- 

- 

- 

Proceedings in cases for determination  of gender identity - a guide for judges and 
attorneys (2020).386 
Accessibility  of  health  care  services  for  people  with  disabilities  -  analysis  and 
recommendations (2020).387 
Protection  against  discrimination  in  Poland.  Legal  status  and  social  awareness. 
Conclusions and recommendations of the Ombud (2020).388 
Legal situation of non-heterosexual and transgender people in Poland (2020).389 
Equal treatment based on religion in employment – analysis and recommendations 
(2018).390 
Experience of harassment among female students – analysis and recommendations 
(2018).391 
Crimes motivated by prejudice – analysis and recommendations (2017).392 

384  Act on the Commissioner for Human Rights, 15 July 1987, Article 17b. 
385  Ombud, annual report for 2016, pp. 15, 109-123. 
386  Ombud (2020), Proceedings in cases for determination of gender identity - a guide for judges and attorneys 

(Postępowania w sprawach o ustalenie płci – przewodnik dla sędziów i pełnomocników), available at: 
https://www.rpo.gov.pl/pl/content/postepowania-w-sprawach-o-ustalenie-plci-przewodnik-dla-sedziow-i-
pelnomocnikow. 

387  Ombud (2020) Accessibility of health care services for people with disabilities - analysis and 

recommendations (Dostępność usług opieki zdrowotnej dla osób z niepełnosprawnościami – analiza i 
zalecenia), available at: https://www.rpo.gov.pl/pl/content/dostepnosc-uslug-opieki-zdrowotnej-dla-osob-z-
niepelnosprawnosciami. 

388  Ombud (2020) Protection against discrimination in Poland. Legal status and social awareness. Conclusions 

and recommendations of the Ombud (Ochrona przed dyskryminacją w Polsce. Stan prawny i świadomość 
społeczna. Wnioski i rekomendacje RPO), available at: https://www.rpo.gov.pl/pl/content/ochrona-przed-
dyskryminacja-w-polsce-stan-prawny-i-swiadomosc-spoleczna. 

389  Ombud (2020) Legal situation of non-heterosexual and transgender people in Poland (Sytuacja prawna osób 

nieheteroseksualnych i transpłciowych w Polsce), Warsaw, available at: 
https://www.rpo.gov.pl/sites/default/files/Sytuacja_prawna_raport_ZRT.pdf.  

390  Ombud (2018) Equal treatment based on religion in employment – analysis and recommendations (Równe 

traktowanie ze względu na wyznanie w zatrudnieniu. Analiza i zaleceni), Warsaw, available at: 
https://www.rpo.gov.pl/sites/default/files/R%C3%B3wne%20traktowanie%20ze%20wzgl%C4%99du%20n
a%20wyznanie%20w%20zatrudnieniu.pdf.  

391  Ombud (2018) Experience of harassment among female students – analysis and recommendations 

(Doświadczenie molestowania wśród studentów i studentek. Analiza i zalecenia), Warsaw, available at: 
https://www.rpo.gov.pl/sites/default/files/Do%C5%9Bwiadczenie%20molestowania%20w%C5%9Br%C3%
B3d%20studentek%20i%20student%C3%B3w%2C%202018.pdf. 

392  Ombud (2017) Crimes motivated by prejudice – analysis and recommendations (Przestępstwa motywowane 

uprzedzeniami. Analiza i zalecenia), Warsaw, available at: 
https://www.rpo.gov.pl/sites/default/files/Przestepstwa%20motywowane%20uprzedzeniami%20ZRT%20nr
%2023%202017.pdf. 

95 

 
 
 
 
 
- 

Personal  assistants  for  people  with  disabilities  –  analysis  and  recommendations 
(2017).393  

Previous  reports  (from  the  years  2011-2016)  are  available  on  the  Ombud’s  website 
(https://www.rpo.gov.pl/).  

In 2013, the Ombud also initiated public consultations with various institutions and CSOs 
regarding  proposed  subjects  to  be  commissioned  for  research.  Institutions  and  CSOs 
proposed particular subjects to choose from. 

In  practice,  this  competence  is  effectively  exercised  in  an  independent  manner.  The 
Ombud’s  Office  decides  independently  which  surveys  to  undertake  and  prepares  its 
reports independently. The effectiveness of this competence is limited, mainly due to the 
shortage  of  funding.  There  is  only  one  sociologist  in  each  department  and  only  two 
research themes are chosen annually. Moreover, even if a subject is chosen, the subject 
matter of the research and the survey cannot be treated in a complex way, otherwise the 
project becomes too expensive. The other limiting factor is that one of the two research 
subjects selected annually must touch on issues pertaining to persons with disabilities (as 
the Ombud has the monitoring mandate under the UNCRPD).  

iii)  Recommendations 

to 

issue 
issues 

the  competence 
issues.394  The  Ombud 

independent  recommendations  on 
The  Ombud  has 
discrimination 
(wystąpienia 
‘general  statements’ 
generalne/problemowe)  on  the  basis  of  complaints  regarding  equal  treatment  and 
research. The number of statements in each year is as follows: 51 (2011), 67 (2012), 66 
(2013),  55  (2016),395  30  (2017),  61  (2018),  20  (2019)  and  56  (2020).396  The  Ombud 
presents  to  the  relevant  agencies,  organisations  and  institutions  opinions,  conclusions 
and  recommendations  that  aim  to  ensure  the  effective  protection  of  the  human  rights 
and freedoms of citizens and to facilitate the procedures that such cases may involve.397 
Additionally,  the  preparation  of  annual  reports  that  are  printed,  made  available  on  the 
Ombud’s  website  and  presented  in  Parliament  provides  a  good  opportunity  for  the 
Ombud  to  formulate  recommendations.  In  practice,  this  competence  is  effectively 
exercised in an independent manner. The Ombud formulates its recommendations based 
solely  on  the  work  of  the  Ombud’s  Office.  When  those  recommendations  are  not 
implemented (as is often the case), the Ombud repeats them in subsequent statements. 
Considering  the  number  and  high  quality  of  the  analyses  in  the  ‘general  statements’ 
prepared  by  the  Ombud  and  addressed  to  different  agencies,  as  well  as  the 
recommendations  grouped  together  in  its  annual  reports,  it  may  be  said  that  this 
competence  is  effectively  exercised.  The  reaction  to  those  recommendations  and  their 
implementation by relevant agencies is, of course, a different issue and varies from year 
to year. In 2018, in the case of 38 complaints that resulted in ‘general statements’, the 
statement was taken into consideration and the problem was solved, whereas in the case 

393  Ombud (2017) Personal assistants for people with disabilities – analysis and recommendations (Asystent 

osobisty osoby z niepełnosprawnością. Analiza i zalecenia), Warsaw, available at: 
https://www.rpo.gov.pl/sites/default/files/Asystent%20osobisty%20osoby%20z%20niepe%C5%82nospraw
no%C5%9Bci%C4%85%20-
%20zapotrzebowanie%20na%20miar%C4%99%20Konwencji%20o%20prawach%20os%C3%B3b%20z%20
niepe%C5%82nosprawno%C5%9Bciami.pdf.  

394  Act on the Commissioner for Human Rights, 15 July 1987, Article 17b. 
395  The figure for 2014-2015 was not provided in the annual report.  
396  Ombud, annual report for 2019, available at: https://www.rpo.gov.pl/pl/content/informacja-roczna-rpo-

2019; Ombud, annual report for 2020, p. 626. 

397  Ombud, Bulletin 12/2, p. 9; annual report for 2012, p. 609, annual report for 2013, p. 9, annual report for 

2016, p. 172, annual report for 2017, p. 709.  

96 

 
 
 
 
 
 
 
of  50  complaints,  the  general  statement  was  not  successful.398  In  2019,  36  complaints 
resulted in ‘general statements’, and in 29 cases the problem was solved.399  

iv)  Other competences 

When carrying out an investigation, the Ombud has the right to examine every matter on 
the spot. The Ombud’s Office may ‘request a hearing or presentation of files of each case 
conducted  by  the  supreme  and  central  state  administration  bodies,  government  bodies, 
bodies  of  cooperative  organisations,  social,  professional  and  socio-professional  and  the 
bodies  of  organisational  units  with  legal  personality  as  well  as  local  government  bodies 
and  local  government  organisational  units’.  As  far  as  court  cases  are  concerned,  the 
Ombud may request information on the status of a case and may request access to court 
and prosecution files.400  

Apart  from  the  competences  already  mentioned  that  stem  directly  from  the  Directives, 
the  Ombud  should,  in  implementing  the  principle  of  equal  treatment,  not  only  analyse 
and  monitor  equal  treatment,  conduct  independent  surveys  on  discrimination,  prepare 
and  publish  independent  reports  and  issue  recommendations  but  should  also  ‘support’ 
equal  treatment  of  everyone.401  The  term  ‘support’  should  be  understood  to  include 
media  campaigns  and  awareness-raising  activities,  communication  and  promotion.  If  it 
was given adequate resources, the Ombud could engage in these activities in addition to 
its  other  work.  The  Ombud’s  regional  meetings  (spotkania  regionalne)402  are  a  good 
example,  as  they  are  a  new  initiative  undertaken  by  the  current  Ombud.  The  Ombud 
travelled  to  various  regions  for  visits  lasting  several  days  and  held  many  personal 
meetings with different groups, organisations and institutions. These visits and meetings 
covered the whole country and fulfilled requirements for many of the activities mentioned 
above, including promotion and raising awareness.  

g) 

Legal standing of the designated body 

In Poland, the designated body (the Ombud) has legal standing to:  

• 
• 
• 

bring discrimination complaints on behalf of identified victims to court; 
bring discrimination complaints ex officio to court; 
intervene  in  legal  cases  concerning  discrimination,  for  example,  as  an  amicus 
curiae. 

In Poland, the designated body (the Ombud) does not have legal standing to:  

• 

bring to court discrimination complaints on behalf of non-identified victims. 

The Ombud, after examining a case, may  inter alia request that civil and administrative 
proceedings  be  instituted;  take  part  in  any  pending  civil  case  or  administrative 
proceedings;  request  the  institution  of  preparatory  proceedings  by  a  competent 
prosecutor  in  the  case  of  offences  prosecuted  ex  officio;  and  apply  to  administrative 

398  Ombud, annual report for 2018, pp. 163-164. 
399  Ombud, annual report for 2019, pp. 559-573. Detailed data for 2020 is not available as there is no separate 
report on equal treatment, but see a publication devoted to the general statements during the whole term 
of office of the previous Ombud: Ombud (2020), Selected General Statements of the Human Rights 
Defender 2015–2020 (Wybrane Wystąpienia Generalne Rzecznika Praw Obywatelskich 2015–2020), 
available at: rpo.gov.pl. 

400  Act on the Commissioner for Human Rights, 15 July 1987, Article 13. 
401  Act on the Commissioner for Human Rights, 15 July 1987, Article 17b. 
402  Information available at: https://www.rpo.gov.pl/pl/sprawa/spotkania-regionalne-rpo. See also a 

publication summing up this effort: Ombud (2020), Ex officio. Non-official report on complaints, talks and 
meetings with the Ombudsman of the 7th Term 2015-2020 Adam Bodnar (Z urzędu. Nieurzędowy raport ze 
skarg, rozmów, spotkań z Rzecznikiem Praw Obywatelskich VII Kadencji 2015–2020 Adamem Bodnarem), 
available at: rpo.gov.pl.  

97 

 
 
 
 
 
 
 
 
 
 
 
bodies  to  implement  measures  laid  down  by  law.403  It  may  also  lodge  a  constitutional 
complaint  (review  in  abstracto)  or  join  proceedings  before  the  Constitutional  Tribunal 
started  by  someone  else  (before  2015,  the  Ombud  could  join  only  cases  of  individual 
constitutional  complaint;  since  30  August  2015,  the  Ombud  has  been  able  to  join  any 
case).404 

There  is  no  actio  popularis  in  Poland.  The  constitutional  complaint  (review  in  abstracto) 
could be understood as a complaint on behalf of non-identified victims, since the Ombud 
challenges  a  law  as  unconstitutional;  i.e.  a  law  that  is  or  could  be  a  basis  for  decisions 
and  rulings  affecting  many  people.  However,  this  is  not  actio  popularis  exercised  in  the 
common courts.  

In  practice,  the  Ombud  brings  a  number  of  cases  ex  officio,  mostly  based  on  media 
reports.  The  Ombud’s  Office  contacts  interested  parties  in  a  case  and  offers  its 
assistance. It  might investigate the case  or bring the  case to the  court, or it might join 
proceedings if these have already been instituted.  

h)  Quasi-judicial competences 

In Poland, the designated body is not a quasi-judicial institution. 

i) 

Registration by the body/bodies of complaints and decisions 

The Ombud registers the number of complaints  of discrimination made by ground, field, 
type  of  discrimination,  etc.  These  data  are  available  to  the  public,  although  2014  is  an 
exception in this regard. Information on the number of enquiries received is not publicly 
available but is reported internally within the Ombud’s Office. 

According to the reports produced by the Ombud as the equality body, the total number 
of  discrimination  complaints  received  by  the  Ombud’s  Office  is  as  follows:  1 046  in 
2020;405  571  in  2019;406  626  in  2018;407  560  (669)  in  2017;408  622  in  2016;409  787  in 
2015;410  1 198  in  2014;411  845  in  2013;  1 960  in  2012;  and  1 033  in  2011).  The  term 
‘complaint’ can mean a complaint brought by  an individual, but many of the complaints 
might  in  fact  be  identical  letters  sent  to  the  Ombud  by  a  number  of  people  in  order  to 
protest  against  something,  such  as  discriminatory  public  statements.412  Thus,  for 
instance, the 90 % increase in discrimination complaints in 2012 was the result of almost 
1 000  letters/complaints  protesting  against  the  decision  of  the  Minister  of  Labour  and 
Social  Policy  not  to  appoint  any  deaf  people  as  members  of  the  Polish  Council  for  Sign 
Language.413  In  2013,  in  contrast,  there  were  no  ‘group  complaints’,  so  the  overall 
number of complaints was smaller.  

The Ombud’s Office divides complaints received into the following categories (number of 
cases  and  their  share  as  a  percentage  of  the  total).414  As  mentioned  above,  the  figures 

403  Act on the Commissioner for Human Rights, 15 July 1987, Article 14.  
404  Act on the Commissioner for Human Rights, 15 July 1987, Article 16. 
405  Ombud, annual report for 2020, p. 635.  
406  Ombud, annual report for 2019, pp. 559-573. 
407  Ombud, annual report for 2018, pp. 159-160. 
408  Ombud, annual report for 2017. The report gives two different numbers: 560 on p. 60, and 669 on p. 714. 
409  Ombud, annual report for 2016, p. 171. 
410  Ombud, annual report for 2015, p. 10, pp. 110-111.  
411  Government Plenipotentiary for Equal Treatment (2015), Report on the Activities of the Government 

Plenipotentiary for Equal Treatment for the period 1 January 2014– 31 December 2014 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2014 r. do 31 
grudnia 2014 r.), Warsaw, p. 3.  

412  Ombud, Bulletin 2012/2, p. 9.  
413  Ombud, annual report for 2012, p. 390. 
414  Based on: Ombud, Bulletin 2012/2, pp. 90-91; annual report for 2012, pp. 607-608; annual report for 

2013, pp. 103-104; annual report for 2015, p. 111; annual report for 2016, pp. 171-172; annual report for 

98 

 
 
 
 
 
 
 
 
 
 
 
for  2014  are  not  known.  The  figures  for  2020  have  not  been  published,  apart  from  the 
overall number of 1 046 complaints.   

2011  2012  2013  2015  2016  2017  2018  2019 
42  
4.1 % 

3 
0.5 % 

13  
1.7 % 

15  
2.4 % 

6 
1.1 % 

1 
0.2 % 

40  
2 % 

44 
5.2 % 

Matter 
Principle of 
equality before 
the law 
Prohibition of unequal treatment/discrimination  
Prohibition of 
unequal 
treatment/discrimi
nation 
based on sex 

85  
8.2 % 

21  
1.1 % 

27 
3.2 % 

28 
3.6 % 

27  
4.3 % 

18 
3.2 % 

15 
2.5 % 

14 
2.5 % 

56  
5.4 % 

52 
2.7 % 

39 
4.6 % 

55 
7.0 % 

60  
9.7 % 

49 
8.8 % 

based on religion 
or belief 
based on sexual 
orientation 

based on age 

based on 
nationality 

67  
6.5 % 
334 
32.3 
% 
58  
5.6 % 
42  
4.1 % 

based on disability  92 

8.9 % 

158  
8 % 
21 
1.1 % 

57  
2.9 % 
54 
2.8 % 

1 097 
56 % 

30  
2.9 % 

14 
0.7 % 

42 
5.0 % 
65 
7.7 % 

49 
5.8 % 
81 
9.6 % 

305 
36.1 
% 
7  
0.8 % 

45 
5.7 % 
59 
7.5 % 

46 
5.8 % 
76 
9.7 % 

238 
30.2 
% 
6  
0.8 % 

28  
4.5 % 
59  
9.5 % 

43  
6.9 % 
45  
7.2 % 

211  
33.9 
% 
3  
0.5 % 

6  
0.6 % 
3  
0.3 % 

20  
1 % 
13 
0.6 % 

6  
0.7 % 
5  
 0.6 % 

6  
0.8 % 
5  
 0.6 % 

3  
0.5 % 
3  
0.5 % 

80 
12.8 
% 
27 
4.3 % 
34 
5.4 % 

37 
5.9 % 
72 
11.2 
% 
156 
24.9 
% 
2 
0.3 % 

n/a 

4 
0.6 % 

101 
17.7 
% 
42 
7.4 % 
110 
19.3 
% 
40 
7 % 
76 
13.3 
% 
87 
15.2 
% 
1 
0.2 % 

3 
0.5 % 
n/a 

23 
4.1 % 
48 
8.6 % 

24 
4.3 % 
84 
15 % 

161 
28.7 
% 
1 
0.2 % 

2 
0.4 % 
4 
0.7 % 

25  
2.4 % 
n/a 

16 
 0.8 % 
n/a 

18 
 2.1 % 
n/a 

30 
 3.8 % 
9 
 1.1 % 

18  
2.9 % 
2  
0.3 % 

40 
7 % 
1 
0.2 % 

26 
4.2 % 
5 
0.8 % 

12 
2.1 % 
3 
0.5 % 

6  
0.6 % 
12  
1.2 % 
66 

6 
 0.3 % 
4 
 0.2 % 
123 

3 
 0.3 % 
20 
 2.4 % 
46 

9 
 1.1 % 
8 
 1.0 % 
15 

1  
0.2 % 
9  
1.5 % 
4  

1 
0.2 % 
9 
1.6 % 
8 

5 
0.8 % 
12 
1.9 % 
5 

4 
0.6 % 
30 
5.3 % 
3 

2018, pp. 159-160, annual report for 2019, pp. 559-573. Information covering the year 2017 is not 
provided in the Ombud’s annual report for 2017. However, it was provided in the draft report, in which the 
total number of 560 complaints was subdivided into categories. The numbers given here are therefore based 
on the numbers in the draft report, as provided by the Ombud’s Office.  

415  The term used for ‘worldview’ is Światopogląd.  
416  The term used for ‘non religious’ is Bezwyznaniowość.  

99 

of social and 
occupational 
groups 
related to taxes 

of people without 
a registered place 
of permanent 
residence 
based on race and 
ethnic origin 
based on 
worldview/opinion
s415 (including 
non-
denominational, 
non-religious)416 
based on political 
opinions 
based on sexual 
identity 
related to legal 

 
 
 
2011  2012  2013  2015  2016  2017  2018  2019 
 1.9 %  0.6 %  1.4 %  0.8 %  0.5 % 
6.4 % 

 6.3 % 

 5.4 % 

11  
1.0 % 

107 
5.5 % 

9 
 1.1 % 

5 
 0.6 % 

7  
1.1 % 

1 
0.2 % 

2 
0.3 % 

1 
0.2 % 

4  
0.4 % 
94 
9.1 % 

1 
 0.1 % 
150 
 7.6 % 

0 

0 

n/a 

n/a 

79 
 9.4 % 

143 
18.2 
% 

84 
13.5 
% 

80  
14.3 
% 

2 
0.3 % 
139 
22.2 
% 

n/a 

43 
7.5 % 

2011 
1033 

2012 
1960 

2013 
845 

2015 
810 

2016 
624 

2017 
560 

2018 
626 

2019 
571 

376 

458 

308 

292 

229 

187 

170 

188 

Matter 
and 
material/property 
status 
based on 
education or 
occupation 
based on social 
origin 
based on other 
reasons 

Number of 
complaints per 
year 

Number of 
complaints 
where the 
Ombud simply 
informed the 
parties about 
other means of 
action and legal 
measures to 
which 
individuals are 
entitled 

j) 

Roma and Travellers 

Complaints against breaches of national minority rights constitute a small percentage of 
cases  sent  to  the  Ombud.  However,  the  Ombud  is  unequivocally  committed  to  Roma 
issues and over the years has reported on the clearly unfavourable situation faced by the 
Roma community. 

Every  year,  the  Ombud  addresses  the  problems  of  the  Roma  community,  focusing  on 
access  to  education,  housing  and  employment,  both  supporting  victims  in  individual 
cases  and  addressing  systemic  problems  in  the  ‘general  statements’.  The  Ombud  visits 
the  Roma  in  the  places  where  they  live;  monitors  the  situation  of  Roma  pupils  in 
education;  counteracts  school  segregation;  protects  Roma  from  eviction,  and  begins  or 
joins proceedings on behalf of Roma. 

According  to  the  Ombud,  the  situation  of  the  Roma  minority  is  gradually  improving, 
thanks  to  the  activity  of  Roma  organisations  and  the  Programme  for  the  Integration  of 
the Roma Community in Poland 2014-2020. The Roma Programme alone, however, is not 
enough  to  effectively  counteract  the  exclusion  from  social  and  economic  life  that  is  still 
faced  by  a  large  part  of  the  Roma  community.  The  Ombud  proposes,  for  instance,  the 
creation  of  a  separate  project  involving  investment  activities  in  the  housing  sphere. 
Financial  mechanisms  should  also  be  created  to  encourage  local  government  to  use  the 
funds available in the Roma programme.  

100 

 
 
 
 
 
 
 
 
During the pandemic, the Ombud focused on ensuring that the authorities are devoted to 
the  needs  of  the  Roma  minority.  The  Ombud  sent  several  letters  and  statements  and 
asked about the situation of the Roma community in different regions.417 According to the 
Ombud,  due  to  the  exclusion  they  experience  on  a  daily  basis,  Roma  may  have  limited 
access  to  information  on  risks  regarding  covid19,  protection  measures  and  medical 
assistance.  Local  authorities  have  a  duty  to  safeguard  the  health  of  all  their  citizens  as 
equally as possible. 

In  2020,  the  Ombud  appealed  to  local  authorities  to  take  measures  to  reduce  the 
epidemic  risk  in  Roma  settlements  and  ensure  the  implementation  of  the  right  to 
education for children. The Ombud sent several letters and statements and asked about 
the situation of the Roma community in different regions. The answers showed that only 
in some  communes was it decided to provide  the Roma with additional support through 
personal protection measures.  

The  Defender  also  undertook  an  intervention  in  favour  of  Romanian  Roma,  residents  of 
Wrocław,  Gdańsk  and  Poznań,  addressing  the  mayors  of  these  cities  with  a  request  for 
information  whether,  in  connection  with  the  epidemic  threat,  local  government 
authorities had taken measures to prevent infections that would be addressed directly to 
this  particular  group  of  residents.  The  answers  obtained  showed  that  the  authorities  of 
each city undertook preventive and informative activities, including by publishing leaflets 
on  epidemic  threats  in  Polish  and  Romanian,  and  by  providing  food  and  basic  personal 
protective  equipment  to  those  in  need.  Due  to  the  lack  of  appropriate  computer 
equipment, the children could not take full advantage of online learning. The support of 
education  assistants,  who  acted  as  intermediaries  in  contact  between  children  and 
schools, was secured.418  

417  See: https://www.rpo.gov.pl/pl/content/koronawirus-rpo-pyta-o-sytuacje-imigrantow-romskich-

mieszkajacych-we-wroclawiu-gdansku-i-poznaniu; https://www.rpo.gov.pl/pl/content/koronawirus-wojt-
gminy-o-pomocy-dla-osiedla-romskiego-w-maszkowicach.   

418  Ombud,  annual  report  for  2020,  pp.  92-94;  see  also:  https://www.rpo.gov.pl/pl/content/koronawirus-rpo-

pyta-o-sytuacje-imigrantow-romskich-mieszkajacych-we-wroclawiu-gdansku-i-poznaniu;  
https://www.rpo.gov.pl/pl/content/koronawirus-wojt-gminy-o-pomocy-dla-osiedla-romskiego-w-
maszkowicach.   

101 

 
 
 
 
 
 
8 

IMPLEMENTATION ISSUES  

8.1  Dissemination  of  information,  dialogue  with  NGOs  and  between  social 

partners 

a)  Dissemination  of  information  about  legal  protection  against  discrimination  (Article 

10, Directive 2000/43 and Article 12, Directive 2000/78)  

All  legislative  acts  issued  in  Poland  are  published  in  an  official  journal,  which  fulfils  the 
requirement  of  publicly  announcing  legal  norms  and  enabling  public  awareness  of  what 
the law says. Usually, however, publication in an official journal does not mean much to 
the  general  public.  Nevertheless,  it  should  be  noted  that  awareness  of  equal  treatment 
and  the  need  to  safeguard  non-discrimination  is  slowly  but  surely  increasing  in  Poland, 
although it cannot yet be deemed satisfactory. 

Because  of  this,  the  Ombud  decided  to  focus  its  research  on  under-reported  issues  and 
find  out  why  victims  of  discrimination  do  not  report  it.419  According  to  annual  studies 
commissioned  by  the  Ombud,  70 %  to  90 %  of  people  who  believed  that  they  had 
experienced  discrimination  in  the  given  year  have  not  reported  this  to  any  public 
institution  (the  figure  was  73 %  in  2018  and  in  2020,  it  was  81 %).420  Moreover,  the 
majority  of  people  are  unaware  that  discrimination  is  prohibited  in  areas  such  as 
employment and the labour market or in access to goods and services.  

According to the Ombud, the reasons for this are manifold and include a low level of legal 
awareness;  a  lack  of  understanding  of  the  notion  of  discrimination;  a  lack  of  trust  in 
public bodies and institutions; a fear of retaliation as a result of reporting discrimination; 
a reluctance to disclose intimate information about one’s life; as well as a lack of faith in 
the effectiveness of  an intervention. For these  reasons, the  Ombud has appealed to the 
state  authorities  to  exercise  special  sensitivity,  and  in  particular  to  take  proactive 
measures to counter and combat discrimination, even without specific victims taking the 
initiative.421  In  addition,  due  to  both  global  and  national  developments,  worrying  social 
processes  have  developed,  such  as  an  increase  in  hate  speech  and  hate  crime  against 
ethnic and religious minorities, as well as an increase in antisemitism, and rising levels of 
homophobia and even physical attacks on the offices of LGBT organisations.  

From  the  legal  point  of  view,  the  most  important  instrument  for  the  effective 
dissemination  of  information  related  to  the  issues  of  discrimination  in  employment  is 
Article  94(1)  of  the  Labour  Code.  It  imposes  on  all  employers  an  obligation  to  enable 
employees  to  access,  in  the  workplace,  the  legal  provisions  concerning  equal  treatment 
in employment. In this way, it directly implements the option included in Article 12 of the 
Employment Equality Directive. The Labour Code recommends that the employer should 
meet  this  requirement  by  disseminating  information  in  written  form.  The  employer  is, 
however,  free  to  choose  other  options  and  grant  access  to  the  information  ‘by  another 
means accepted by a particular employer’.  

The  options  chosen  to  put  this  provision  into  operation  may  vary  among  different 
employers  –  it  can  take  the  form  of  printed  leaflets  or  brochures  distributed  in  the 
workplace, or printed information given to the employee, who may be required to provide 
their signature as proof that they have taken note of it.422 Such information can also be 
attached  to  labour  contracts  or  workplace  codes  of  conduct.  The  National  Labour 
Inspectorate is responsible for the implementation of Article 94(1). 

419  Ombud, annual report for 2013, p. 10. 
420  Ombud, research commissioned from Kantar Public on ‘Legal awareness in the context of equal treatment’, 

Kantar 2020, 2018, 2016, 2015. 

421  Ombud, annual report for 2016, pp. 114, 70, 156. 
422  See, for example, Potocka, P. (2004), Model information on equal treatment in employment, Gdańsk 

(published by a private centre for consultancy and vocational training). 

102 

 
 
 
 
 
 
 
 
 
This obligation is not imposed by the ETA, which constitutes an unjustified differentiation 
of the situation of employees depending on the form of employment (under labour law or 
civil  law)  in  accessing  information  about  the  prohibition  of  discrimination  and  the 
protection measures in this respect.423 

A  view  has  emerged  that,  if  social  research  indicated  a  low  level  of  social  awareness 
about  legal  protection  against  discrimination,  it  would  be  necessary  to  consider  the 
allegation  of  incorrect  implementation  by  not  ensuring  the  effective  implementation  of 
the  objective  of  the  regulations.424  In  fact,  the  general  level  of  awareness  about 
discrimination issues is low, as proved by the surveys commissioned by the Ombud.425  

Since  the  Ombud  became  the  equality  body  in  2011,  it  has  organised  numerous  events 
on discrimination issues, commissioned research and published a number of reports and 
manuals.  Some  of  the  activities  of  the  Ombud  attract  public  attention  and  are  more 
widely publicised, including the work of the Expert Committee on People with Disabilities 
and  the  Expert  Committee  on  the  Rights  of  Elderly  People.426  The  committees  present 
their  findings,  opinions  and  publications  during  conferences.427  In  addition,  since  2011, 
the  Ombud’s  website  has  included  a  section  on  the  role  of  the  Ombud  as  the  equality 
body (in Polish and English, although the information is limited).428 The Ombud has also 
printed  leaflets  and  guidance  on  its  role  as  the  equality  body  and  is  involved  in 
dissemination activities.  

The  Office  of  the  Government  Plenipotentiary  for  Equal  Treatment  has  the  obligation  of 
‘promotion,  dissemination  and  propagation  of  issues  of  equal  treatment’.429  The  Office 
created a website at the end of 2008, which was quite limited in substance but gradually 
became  an  interesting  source  of  information.  However,  this  ceased  due  to  the  changes 
and the merger of this  Office with the Office of the Government Plenipotentiary for Civil 
Society,  described  in  detail  in  Section  7.a,  and  new  information  is  currently  very 
limited.430  In  the  past,  the  Office  also  engaged  in  campaigns  and  organised  some 
competitions  (for  school  children  and  journalists)  that  could  play  a  role  in  awareness-
raising.431  The  Plenipotentiary  dealt  with  various  grounds  of  discrimination,  but  most  of 
its  activities  were  and  still  are  focused  on  issues  of  sex  discrimination  and,  recently,  on 
issues affecting families with children.432  

Until 2017, according to Polish law, nurseries, schools and educational institutions had to 
include  in  their  curricula  anti-discrimination  education  and  activities  embracing  the  full 

423  ‘Protection against discrimination in Poland’ (2020), p. 17.  
424  M.Kułak (2021), p. 43-44. 
425  See information on surveys by Kantar (2015, 2016, 2018, 2020) in other parts of the report.  
426  Ombud, annual report for 2012, pp. 419-423; Ombud, annual report for 2013, p. 62; Ombud, annual report 
for 2016, pp. 15, 109-123; Ombud, annual report for 2017, pp. 723-763; Ombud, annual report for 2018, 
p. 14; Ombud, annual report for 2020, pp. 600-601. 

427  See, for instance: Ombud, annual report for 2013, pp. 62-64; Ombud, annual report for 2014, pp. 78-80; 

Ombud, annual report for 2016, pp. 109-123. 

428  Available in Polish at: www.rpo.gov.pl/pl/rowne-traktowanie. Available in English at: 

www.rpo.gov.pl/en/content/equal-treatment. 

429  Equal Treatment Act, 3 December 2010, Article 21(2)(6); Ordinance on the Government Plenipotentiary for 

Equal Treatment, 22 April 2008, § 2(1)(7). 

430  See: https://www.rownetraktowanie.gov.pl. 
431  Government Plenipotentiary for Equal Treatment (2013), Report on the Activities of the Government 

Plenipotentiary for Equal Treatment for the period 1 January 2012 – 31 December 2012 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2012 r. do 31 
grudnia 2012 r.), Warsaw, pp. 42-46. 

432  Government Plenipotentiary for Equal Treatment (2020), Report on the Activities of the Government 

Plenipotentiary for Equal Treatment for the period 1 January 2019 – 31 December 2019 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2019 r. do 31 
grudnia 2019 r.); Government Plenipotentiary for Equal Treatment (2017), Report on the Activities of the 
Government Plenipotentiary for Equal Treatment for the period 1 January 2016 – 31 December 2016 
(Sprawozdanie z działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 
2016 r. do 31 grudnia 2016 r.), Warsaw. 

103 

 
 
 
 
 
 
spectrum  of  their  respective  communities.433  However,  this  requirement  has  been 
changed. The Ministry of National Education removed anti-discrimination education from 
the Ordinance on school requirements.434 The draft justification of the new wording of the 
Ordinance  stated  that,  at  school,  ‘it  is  important  to  shape  patriotic  attitudes,  civic 
attitudes, a sense of identity, national and cultural awareness’.435 This was welcomed in 
various conservative circles as a ‘retreat from gender ideology’, as the previous provision 
had  been  described  as  ‘opening  the  gate  to  depravity’.436  It  should  be  underlined  that, 
although  the  draft  Ordinance  was  sent  out  for  public  consultation,  the  list  of  those  to 
whom  it  was  addressed  by  the  Ministry  of  National  Education  did  not  include 
organisations conducting anti-discrimination education.437 

It  must  be  emphasised  that,  more  often  than  not,  most  information  on  equality  issues 
and non-discrimination is not accessible to people with disabilities. However, it should be 
noted  that  some  initiatives  have  been  undertaken  in  this  respect.  The  websites  of  a 
number  of  institutions  include  a  version  that  is  accessible  to  people  with  visual 
impairments.  The  Ombud’s  Office  website  contains  an  increasing  number  of  videos  in 
sign language.  

b)  Measures to  encourage dialogue with NGOs  with a view to promoting the principle 
of equal treatment (Article 12, Directive 2000/43 and Article 14, Directive 2000/78)  

According  to  the  law,  the  Ombud  should  cooperate  with  associations,  CSOs  and  other 
voluntary  organisations and foundations as well as with foreign and international bodies 
and organisations.438 The Government Plenipotentiary for Equal Treatment should, in the 
execution of its duties, collaborate with CSOs, including trade unions and organisations of 
employers.439 

Both the above-mentioned institutions maintain dialogue with CSOs. CSO representatives 
are  invited  to  present  their  opinions  and  discuss  issues  of  mutual  concern.  However, 
since  the  activities  of  the  Plenipotentiary  for  Equal  Treatment  were  limited  since  2016 
(due to the merger with the Office of the Government Plenipotentiary for Civil Society, as 
described in Section 7.a), collaboration with CSOs has been limited as well. 

Dialogue  with  CSOs  was  also  encouraged  by  the  National  Programme  of  Activities  for 
Equal  Treatment  for  2013-2016.440  The  last  report  on  the  programme  covers  the  year 
2016. Despite the legal obligation to do so, a new programme has not been prepared for 
four years. Only at the end of 2020 was a draft programme prepared and published for 
consultation.    

In  the  Ombud’s  Office,  three  special  teams  of  experts  have  been  established 
(representing three priorities of the previous Ombud) – namely, the Expert Committee on 
People  with  Disabilities,  the  Expert  Committee  on  the  Rights  of  Elderly  People  (since 

433  Ordinance of the Minister of National Education on the requirements for schools and institutions 

(Rozporządzenie Ministra Edukacji Narodowej z dnia 6 sierpnia 2015 r. w sprawie wymagań wobec szkół i 
placówek, Dz.U.2015.1214), 6 August 2015. 

434  Ordinance of the Minister of National Education on the requirements for schools and institutions 

(Rozporządzenie Ministra Edukacji Narodowej z dnia 11 sierpnia 2017 r. w sprawie wymagań wobec szkół i 
placówek, Dz.U.2017.1611), 11 August 2017 (replacing the Ordinance of 2015). 

435  See: http://wyborcza.pl/osiemdziewiec/7,159012,22043484,fabryka-patriotow-pis-wyrzuca-edukacje-

antydyskryminacyjna.html.  

436  See: http://www.oswiata.abc.com.pl/czytaj/-/artykul/dzialania-antydyskryminacyjne-znikna-z-

rozporzadzenia; https://naszdziennik.pl/polska-kraj/184845,odwrot-od-gender.html. 

437  See: http://wyborcza.pl/osiemdziewiec/7,159012,22043484,fabryka-patriotow-pis-wyrzuca-edukacje-

antydyskryminacyjna.html.  

438  Act on the Commissioner for Human Rights, 15 July 1987, Article 17a.  
439  Equal Treatment Act, 3 December 2010, Article 21(2)(7); Ordinance on the Government Plenipotentiary for 

Equal Treatment, 22 April 2008, § 3(3). 

440  Report on the execution of the National Programme of Activities for Equal Treatment for 2015 (Raport 

z realizacji Krajowego Programu Działań na rzecz Równego Traktowania za 2015 r.), January 2017, p. 8. 

104 

 
 
 
 
 
 
 
 
March  2011)  and  the  Expert  Committee  on  the  Rights  of  Migrants  (since  May  2011); 
some  members  of  these  committees  represent  CSOs.441  Other  committees  were 
subsequently  created,  such  as  the  Expert  Committee  on  Mental  Health  Protection,  the 
Expert  Committee  on  Deaf  People,  the  Expert  Committee  on  Health  and  the  Expert 
Committee  on  Counteracting  Homelessness.  The  Social  Council,  which  has  a  general 
advisory  character,  was  established  in  December  2010.442  In  addition  to  organising 
regular meetings with  CSOs, the  Ombud invites representatives  of CSOs to take part in 
its activities and events.  

In  2013,  the  Ombud  decided  to  start  public  consultations  regarding  the  subjects  of 
research commissioned by the Ombud’s Office. There was no list of suggested subjects; 
the Ombud asked an open question, but added that it was particularly interested in ideas 
regarding  the  needs  of  social  groups  that  have  so  far  not  been  addressed  for  various 
reasons, which has led to under-reporting. The Ombud selected research subjects for the 
years  2014-2015,  2016-2017  and  2019-2020443  based  on  these  suggestions  (most  of 
them proposed by CSOs).444  

The Ombud’s annual reports for 2019 and 2020 list hundreds of occasions  on which the 
Ombud  and  its  office  and  employees  collaborated  with  various  social  initiatives  and 
organisations;  participated  in  conferences  and  seminars;  and  conferred  the  Ombud’s 
honorary patronage.445  

The Plenipotentiary has published manuals and guidebooks,446 and until the end of 2015 
it  organised  (and  often  co-organised)  regular  conferences  with  CSOs,  round-table 
discussions and meetings on different subjects. However, in 2016, the situation changed. 
The  Plenipotentiary  for  Equal  Treatment  drafted  a  negative  opinion  of  the  Polish 
Government  with  regard  to  the  proposal  for  the  EU  horizontal  directive.  CSOs  dealing 
with discrimination  expressed their  concern that they  were not  consulted in the process 
of  the  preparation  of  the  opinion  and  could  not  provide  their  detailed  opinions.  When 
asked about this before the Parliamentary Commission, the Plenipotentiary did not reply 
directly, but in a response mentioned meeting with some CSOs on discrimination policies, 
stating  that  for  the  first  time  conservative  organisations  (he  mentioned  three  of  these) 
had a chance to raise their voice.447 However, there were in fact no consultations, as was 
finally admitted later,  when the Plenipotentiary was asked  for a list  of the organisations 
consulted. Apparently, no invitations to consultations were issued and no written opinions 
were  formulated,  even  though  a  number  of  CSOs  had  expressed  their  interest  in 
preparing  opinions  on  the  draft  directive.  As  explained  by  an  employee  of  the 

441  See: www.rpo.gov.pl/en.. 
442  See: www.rpo.gov.pl/pl/content/rada-spoleczna-rpo.  
443  Due to lack of funds, research projects for 2018 and 2019 have been postponed; see: 

https://www.rpo.gov.pl/pl/content/badania-antydyskryminacyjne-RPO.  

444  According to the Ombud’s announcement on 22 September 2015, of 54 suggestions from CSOs and 
academics, the Ombud chose six topics for the years 2016 and 2017, as follows. In 2016: personal 
assistants for people with disabilities (Asystent osobisty osoby z niepełnosprawnością); unequal treatment in 
the workplace on grounds of religion (Nierówne traktowanie w miejscu pracy ze względu na religię); and 
prevention of violence motivated by sexual orientation and gender identity (Przeciwdziałanie przemocy 
motywowanej orientacją seksualną oraz tożsamością płciową). In 2017: discrimination against people with 
disabilities in healthcare (Dyskryminacja osób z niepełnosprawnością w opiece zdrowotnej); the 
phenomenon of harassment and sexual harassment (Zjawisko molestowania i molestowania seksualnego); 
and discrimination on the grounds of nationality and ethnic origin in employment (Dyskryminacja ze 
względu na narodowość i pochodzenie etniczne w zatrudnieniu). Information available at: 
www.rpo.gov.pl/pl/content/tematy-badan-antydyskryminacyjnych-na-lata-2016-i-2017.  
445  Ombud, annual report for 2019, pp. 591-632; Ombud, annual report for 2020, pp. 645-667. 
446  Government Plenipotentiary for Equal Treatment (2015), Report on the Activities of the Government 

Plenipotentiary for Equal Treatment for the period 1 January 2014 – 31 December 2014 (Sprawozdanie z 
działalności Pełnomocnika Rządu do spraw Równego Traktowania za okres od 1 stycznia 2014 r. do 31 
grudnia 2014 r.), Warsaw, p. 16. 

447  Parliamentary Commission meeting minutes, available at: 

http://orka.sejm.gov.pl/zapisy8.nsf/0/01EB7ECB99A118CEC1258028004B2A03/%24File/0096508.pdf. 

105 

 
 
 
 
 
Plenipotentiary’s  Office,  the  Plenipotentiary  instead  based  its  opinion  on  media 
materials.448  

c)  Measures to promote dialogue between social partners to give effect to the principle 
of  equal  treatment  within  workplace  practices,  codes  of  practice  and  workforce 
monitoring (Article 11, Directive 2000/43 and Article 13, Directive 2000/78) 

The  Constitution  contains  a  general  provision  on  dialogue  and  cooperation  between  the 
social partners as one of the foundations of the Polish economic system.449 

In 2001, Parliament issued the Act on the Tripartite Committee for Social and Economic 
Affairs  and  Voivodeship  Committees  for  Social  Dialogue.450  It  was  replaced  in  July  2015 
by the Act on the Social Dialogue Council and Other Institutions of Social Dialogue.451  
‘The  social  dialogue  entails  the  involvement  of  employers,  employees  and  governments 
into  the  decision-making  process  regarding  employment  and  workplace-related  issues. 
This  dialogue  includes  all  types  of  the  negotiations,  consultations  and  an  information 
exchange  between  the  representatives  of  abovementioned  groups,  on  the  issues  of 
common  interest,  related  to  the  economic,  labour  and  social  policy.  […]  The  bipartite 
dialogue between social partners (i.e. the employees and employers) may have the form 
of  collective  bargaining  or  any  other  form  of  negotiation,  cooperation,  preventing  and 
solving  of  the  disputes.  The  tripartite  dialogue  –  engages  the  representatives  of 
employees,  employers  and  government  […].  The  Social  Dialogue  Council  is  the  main 
institution  of  the  national  tripartite  dialogue.  At  the  voivodeship  level  there  are  the 
Voivodeship  Social  Dialogue  Councils.  The  sectoral  dialogue  has  also  the  tripartite 
formula.’452 

In  1995,  the  Ministry  of  Economy  and  Labour  established  the  Centre  for  Social 
Partnership,  known  as  the  ‘Dialogue  Centre’.  The  Centre  was  intended  to  initiate  and 
promote social dialogue, assist social partners and offer training.453 

Hence, there are venues and opportunities for initiating dialogue between social partners 
in  order  to  give  effect  to  the  principle  of  equal  treatment.  However,  according  to  the 
research  undertaken  for  this  report,  the  subject  of  combating  discrimination  has  never 
been  included  on  the  Tripartite  Committee’s  agenda.  It  is  interesting  to  note  that  in 
2016, the Plenipotentiary for Equal Treatment proposed the following issues for inclusion 
in  the  Social  Dialogue  Council  agenda  for  2017:  ‘Review  of  instruments  supporting  the 
professional  activity  of  people  aged  50+  and  presentation  of  recommendations  and 
necessary actions’; and ‘Instruments supporting the entry of people with disabilities into 
the  labour  market  –  analysis,  possible  changes  in  this  area’.  The  Plenipotentiary’s 
proposals  were  not  included  in  the  Social  Dialogue  Council’s  work  plan  for  2017,  2018, 
2019 or 2020.454 

448  See: http://www.tokfm.pl/Tokfm/1,103454,20871375,pelnomocnik-ds-rownego-traktowania-odrzucil-

dyrektywe-bez-konsultacji.html. 

449  Constitution of the Republic of Poland, 2 April 1997, Article 20, available at: 

http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-republic-of-poland/. 
450  Act on the Tripartite Committee for Social and Economic Affairs and Voivodeship Committees for Social 

Dialogue (Ustawa z 6 lipca 2001 o Trójstronnej Komisji do Spraw Społeczno-Gospodarczych i wojewódzkich 
komisjach dialogu społecznego), 6 July 2001.  

451  Act on the Social Dialogue Council and other institutions of social dialogue (Ustawa z dnia 24 lipca 2015 r. o 

Radzie Dialogu Społecznego i innych instytucjach dialogu społecznego), 24 July 2015. 

452  See: http://www.dialog.gov.pl/en/. 
453  For more information, see the Centre’s website, available at: www.cpsdialog.pl/. 
454  See documents of the Council, available at: http://www.dialog.gov.pl/dialog-krajowy/rada-dialogu-

spolecznego/uchwaly-rds/.   

106 

 
 
 
 
 
 
 
 
 
 
 
d) 

Addressing the situation of Roma and Travellers  

In  2002,  a  special  team  on  Roma  issues  was  established  within  the  Ministry  of  the 
Interior. Later, the role of the team was taken over by the new Joint Commission of the 
Government  and  Ethnic  and  National  Minorities  (an  advisory  body  established  on  the 
basis  of  the  2005  Act  on  National  and  Ethnic  Minorities  and  Regional  Languages).  The 
Joint Commission  met  between three and six  times per year until 2020, when they met 
only once. 455 There are two Roma members on the Commission (out of 35 members).456 
In  June  2008,  the  Commission  established  a  special  Roma  Issues  Team.  The  Roma 
Issues  Team  comprised  26  leaders  and  representatives  of  the  Roma  community 
representing  different  CSOs  and  representatives  of  Government  bodies  responsible  for 
equality  issues,  as  well  as  local  government  representatives  from  places  with  a  large 
Roma population.457 Following its establishment in June 2008, it met 15 times by the end 
of  December  2012.  After  a  four-year  break,  the  team  restarted  its  meetings  and  met 
twice in 2016 for its 16th and 17th meetings (there have been no meetings since 2017). 
The  team  discussed  various  issues  relevant  to  the  Roma  community  and,  in  particular, 
various  programmes  devoted  to  the  Roma  community.  Minutes  of  the  Team’s  meetings 
are available.458 

Roma  organisations  also  have  the  opportunity  to  receive  funds  from,  among  other 
sources,  the  current  Roma  programme,  and  many  of  them  are  beneficiaries  of  such 
grants. 

Roma issues were not on the agenda of the Tripartite Committee for Social and Economic 
Affairs  (comprising  Government,  employers’  organisations  and  trade  unions),  which  is  a 
platform for social dialogue in Poland. However, as the Roma population is very small and 
most Roma are unemployed, this should not be considered as being an issue of concern 
for the Committee’s members. 

When  the  Government’s  Programme  for  the  Roma  Community  in  Poland  for  2004-2013 
ended,  a  new  programme,  as  mentioned  above,  was  begun.  The  Programme  for  the 
Integration  of  the  Roma  Community  in  Poland  2014-2020459  document  was  finally 
adopted by the Council of Ministers on 7 October 2014. 

The main goal of the programme was to improve the integration of the Roma in four core 
fields: education (including, as a separate issue, cultural, historical and civic education), 
housing,  health  and  employment.  The  programme  followed  the  EU  framework  for 
national Roma integration strategies to 2020, as outlined in Council conclusions (2011/C 
258/04).  Priority  within  the  programme  was  given  to  complex  projects,  based  on  local 
analysis  of  needs  and  executed  in  partnerships  with  CSOs  and  local  government.  The 
programme  included  a  diagnosis  of  the  situation  of  the  Roma  minority  –  i.e.  its 
demographic  characteristics,  main  problems  and  needs.  It  describes  the  activities 
undertaken  so  far  (from  2001  until  2013)  and  formulates  outcomes,  indicators  and 
measures for the period 2014-2020. The programme started in 2015, and information on 
activities that have received funding in subsequent years is available (however, the only 
reports  available  on  the  execution  of  the  programme  are  for  the  years  2015  and 

455  See: http://mniejszosci.narodowe.mswia.gov.pl/mne/komisja-wspolna/posiedzenia/2020/11206,LXX-

posiedzenie-Komisji-Wspolnej-Rzadu-i-Mniejszosci-Narodowych-i-Etnicznych-17-.html.  
456  See: http://mniejszosci.narodowe.mswia.gov.pl/mne/komisja-wspolna/sklad-i-regulamin.  
457  The list of members is attached to the minutes of the first meeting in 2016; see: 

http://mniejszosci.narodowe.mswia.gov.pl/mne/komisja-wspolna/zespol-do-spraw-
romski/posiedzenia/9852,XVI-posiedzenie-Zespolu-do-spraw-romskich-Komisji-Wspolnej-Rzadu-i-
Mniejszosci-N.html.  

458  See: http://mniejszosci.narodowe.mswia.gov.pl/mne/komisja-wspolna/zespol-do-spraw-

romski/posiedzenia.  

459  Ministry of Internal Affairs and Administration (2014), Programme for the Integration of the Roma 

Community in Poland 2014-2020 (Program integracji społeczności romskiej w Polsce na lata 2014-2020), 
available in English at: http://mniejszosci.narodowe.mswia.gov.pl/mne/romowie/program-integracji-spol. 

107 

 
 
 
 
 
 
 
2017).460  In  2020,  an  evaluation  of  the  Programme  for  the  integration  of  the  Roma 
community for the years 2014-2020 was conducted throughout the country from April to 
July  2020  (therefore  it  covered  only  part  of  2020.461  The  new  programme  has  not  yet 
been prepared.  

8.2   Measures to ensure  compliance  with  the  principle  of  equal  treatment 

(Article 14 Directive 2000/43, Article 16 Directive 2000/78) 

a) 

Compliance of national legislation (Articles 14(a) and 16(a)) 

The scope of the general constitutional anti-discrimination clause is wide, and if there are 
any laws contrary to the principle of equality, it is primarily for the Constitutional Tribunal 
to  declare  their  non-conformity  with  the  Constitution.  As  a  consequence  of  such  a 
declaration,  the  provisions  in  question  will  become  void  as  soon  as  the  Tribunal’s 
judgment  enters  into  force.  There  is  no  specific  measure  other  than  the  general 
constitutional clause.  

However, it must be stressed that since the end of 2015, the CT has been undergoing an 
acute  crisis;  indeed,  some  people  claim  that  the  CT  is  ‘paralysed’  or  claim  that  it  no 
longer has validity. The composition of the bench has changed; some judges have been 
suspended;  and  some  are  known  as  ‘understudies’  as  they  have  agreed  to  take  on 
positions to which others had already been appointed. The CT may therefore no longer be 
fully trusted as a guarantor of the protection of civil liberties.462  

In  general,  even  if  the  relevant  provisions  seem  to  be  non-discriminatory  and  neutral, 
their  interpretation  and  implementation  may  result  in  discriminatory  treatment.  It  is 
therefore rather a matter of practice  – there are provisions which have a discriminatory 
character  in  fact,  but  it  is  difficult  to  identify  them  on  a  theoretical  basis;  in  order  to 
challenge  them,  a  specific  case  involving  their  discriminatory  application  must  be 
identified.  

b) 

Compliance of other rules/clauses (Articles 14(b) and 16(b)) 

The Labour Code stipulates that provisions of collective agreements and staff regulations 
must  not  be  less  beneficial  to  employees  than  the  provisions  of  the  Code  and  other 
legislative  and  Government  acts.463  Thus,  should  the  internal  rules  of  an  enterprise,  a 
collective  agreement  or  a  private  contract  include  discriminatory  clauses,  they  would 
clearly be in violation of the ETA as well as the Constitution.464 In addition, according to 
the  Labour  Code,  they  would  be  null  and  void  and  appropriate  provisions  of  the  Code 
would be applied in their place.465 

460  Ministry of Internal Affairs and Administration (2014), Programme for the Integration of the Roma 

Community in Poland 2014-2020 (Program integracji społeczności romskiej w Polsce na lata 2014-2020), 
available in English at: http://mniejszosci.narodowe.mswia.gov.pl/mne/romowie/program-integracji-spol.  
461  Ministry of Internal Affairs and Administration, Evaluation study of the Programme for the Integration of the 

Roma community in Poland for the years 2014 – 2020: Final Report (Badanie ewaluacyjne Programu 
integracji społeczności romskiej w Polsce na lata 2014 – 2020. Raport końcowy), available at: 
http://mniejszosci.narodowe.mswia.gov.pl/mne/romowie/program-integracji-spol/11251,Raport-z-
ewaluacji-Programu-romskiego-2014-2020.html.  

462  There are numerous sources describing the constitutional crisis in Poland. These include European 

Commission recommendations and statements, available at: http://europa.eu/rapid/press-release_IP-17-
5367_en.htm; Venice Commission opinions, available at: 
http://www.venice.coe.int/webforms/documents/?country=23&year=all; and descriptions by legal scholars 
on constitutional blogs, e.g.: http://verfassungsblog.de/?s=Poland; 
http://www.constitutionnet.org/news?region=96. 

463  Labour Code, 26 June 1974, Article 9(2). 
464  Constitution of the Republic of Poland, 2 April 1997, Article 32, available at: 

http://trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitution-of-the-republic-of-poland/. 

465  Labour Code, 26 June 1974, Article 18(2). 

108 

 
 
 
 
 
 
 
 
 
 
Moreover,  since  2011,  civil  law  contracts  have  been  covered  by  the  ETA,  and  the  Civil 
Code stipulates that legal provisions contrary to the law are null and void. Nullity may be 
limited to a part of the legal provision (e.g. a single clause in a contract), if the conflict 
with the law concerns only that part of the Act.466 

In addition, the internal rules of occupations, professions, associations, etc. are reviewed 
by  the  courts  on  the  request  of  a  member  or  another  monitoring  body,  such  as  the 
relevant ministry. Usually, any rules or decisions adopted may be reviewed by an internal 
second-instance body,  but they may then be  challenged before an administrative court. 
Generally,  the  right  to  challenge  any  rules  violating  the  constitutional  prohibition  of 
discrimination  arises  from  the  right  to  a  court  hearing  (Article  45  of  the  Constitution, 
Article 6 of the ECHR). 

Polish  legislation  is  based  on  a  hierarchical  system  of  law  sources.  One  of  the  most 
important general principles is lex superior derogat legi inferiori (higher rules – rules with 
greater legal force – prevail over lesser rules). There are also the following principles: lex 
specialis derogat legi generali (special rules prevail over general rules) and lex posterior 
derogat legi priori (more recent rules prevail over less recent rules). 

466  Civil Code, 23 April 1964, Article 58(1) and (3). 

109 

 
 
 
 
 
9 

COORDINATION AT NATIONAL LEVEL 

There is no single ministry responsible for the coordination at national level of all issues 
of  equal  treatment  and  non-discrimination  based  on  all  the  grounds  of  racial  or  ethnic 
origin, religion or belief, disability, age and sexual orientation.  

However,  the  Government  Plenipotentiary  for  Equal  Treatment  has  the  obligation  to 
execute Government policy in relation to the principle of equal treatment.467  

According  to  the  ETA,  the  Government  Plenipotentiary  for  Equal  Treatment  should 
prepare  and  present  to  the  Council  of  Ministers  a  national  action  programme  for  equal 
treatment468 and then report annually on its execution469. The Polish Council of Ministers 
adopted  the  first  National  Action  Programme  for  Equal  Treatment  2013-2016  (Krajowy 
program  działań  na  rzecz  Równego  Traktowania  na  lata  2013-2016)  document  on  20 
December  2013.470  The  first  annual  report  on  the  execution  of  the  programme  was 
published on 27 June 2014.471 The second report was sent to the Council of Ministers on 
7  May  2015472  (this  is  the  version  used  in  this  report).  The  report  covering  2015  was 
published  in  January  2017.473  The  last  report,  covering  2016,  was  published  in  July 
2017.474  There  have  been  no  reports  since  2017.  According  to  the  information  provided 
by  the  Plenipotentiary  in  2016,  evaluation  was  being  undertaken,  and  the  next 
programme would be developed, based on input from various Government agencies. The 
draft  programme  for  the  years  2021-2030  was  prepared  and  published  for  consultation 
only  in  November  2020.475  According  to  the  Ombud,  the  draft  programme,  in  principle, 
does  not  take  into  account  formulated  recommendations  (also  by  the  Ombud)  and  the 
results  of the Programme for 2013-2016.476 The draft programme  should be  finalised in 
2021. 

The  National  Action  Programme  for  Equal  Treatment  2013-2016  was  the  first 
Government  document  to  tackle  the  problem  of  discrimination  in  general  (previously, 
there  were  programmes  focused  only  on  the  issues  of  racism,  xenophobia  and  related 
intolerance).  The  programme  focused  on  six  areas:  anti-discrimination  policy;  equal 
treatment  in  the  labour  market  and  social  security  system;  counteracting  violence 
(including  domestic  violence)  and  increasing  protection  for  victims  of  violence;  equal 

467  Equal Treatment Act, 3 December 2010, Article 21(1). 
468  Equal Treatment Act, 3 December 2010, Article 22.  
469  The reports published so far are available at: https://www.rownetraktowanie.gov.pl/raporty-z-realizacji-

krajowego-programu-dzialan-na-rzecz-rownego-traktowania. 

470  See Public Information Bulletin – information on the draft National Programme of Activities for Equal 

Treatment, February 2013, and comments on the draft programme and its consecutive versions, including 
the last version adopted by the Council of Ministers, from 10 December 2013, published on 13 December 
2013. Information about the adoption of the National Action Programme for Equal Treatment 2013-2016 by 
the Council of Ministers is available on the website of the Prime Minister, available at: 
https://www.premier.gov.pl/wydarzenia/decyzje-rzadu/krajowy-program-dzialan-na-rzecz-rownego-
traktowania-na-lata-2013-2016.html. The Programme is on the website of the Government Plenipotentiary 
for Equal Treatment, available at: http://rownetraktowanie.gov.pl/aktualnosci/krajowy-program-dzialan-na-
rzecz-rownego-traktowania-na-lata-2013-2016. 

471  Government Plenipotentiary for Equal Treatment (2014) Report on the execution of the National Programme 

of Activities for Equal Treatment for 2013 (Raport z realizacji Krajowego Programu Działań na rzecz 
Równego Traktowania za 2013 r.), Warsaw.  

472  Government Plenipotentiary for Equal Treatment (2015) Report on the execution of the National Programme 

of Activities for Equal Treatment for 2014 (Raport z realizacji Krajowego Programu Działań na rzecz 
Równego Traktowania za 2014 r.) Warsaw. 

473  Government Plenipotentiary for Equal Treatment (2017) Report on the execution of the National Programme 

of Activities for Equal Treatment for 2015 (Raport z realizacji Krajowego Programu Działań na rzecz 
Równego Traktowania za 2015 r.), Warsaw. 

474  Government Plenipotentiary for Equal Treatment (2017) Report on the execution of the National Programme 

of Activities for Equal Treatment for 2016 (Raport z realizacji Krajowego Programu Działań na rzecz 
Równego Traktowania za 2016 r.), Warsaw. 

475  See: https://www.gov.pl/web/rodzina/projekt-uchwaly-rady-ministrow-w-sprawie-ustanowienia-programu-

wieloletniego---krajowy-program-dzialan-na-rzecz-rownego-traktowania-na-lata-2021-2030.  

476  Ombud, annual report for 2020, p. 542. 

110 

 
 
 
 
 
 
treatment in education; equal treatment in the healthcare  system; and equal treatment 
in access to goods and services.  

In  2019,  CERD,  in  its  Concluding  observations  report,  expressed  concern  regarding  the 
‘dissolution,  in  2016,  of  the  Council  for  the  Prevention  of  Racial  Discrimination, 
Xenophobia  and  Related  Intolerance  without  replacing  it  by  another  institution  with  a 
similar  mandate’  and  recommended  that  the  Government  ‘reinstate  the  Council  for  the 
Prevention  of  Racial  Discrimination,  Xenophobia  and  Related  Intolerance  or  establish  an 
alternative multi-stakeholder institution with a similar mandate’.477 

In  relation  to  the  Roma  community,  special  programmes  have  been  developed,  such  as 
the Government Roma Programme 2004-2013 and the Programme for the Integration of 
the Roma Community in Poland 2014-2020 (see more in section 3.2.8.b).478  

477  CERD, Concluding observations on the combined twenty-second to twenty-fourth periodic reports of Poland, 

24 September 2019, available at: 
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD/C/POL/CO/22
-24&Lang=En).  

478  Programme for the Integration of the Roma Community in Poland 2014-2020 (Program integracji 

społeczności romskiej w Polsce na lata 2014-2020), Warsaw, 2014, available at: 
http://mniejszosci.narodowe.mswia.gov.pl/mne/romowie/program-integracji-spol.  

111 

 
 
 
 
 
 
 
10   CURRENT BEST PRACTICES 

In Poland, no best practices can be identified in relation to the use of artificial intelligence 
(AI)  to  improve  the  effective  implementation  of  the  national  legislation  transposing  the 
directives.  

Good  practice  by  the  Ombud  includes  regional  meetings  –  the  Ombud  visits  different 
regions  one  by  one  (each  visit  lasts  for  a  couple  of  days)  and  meets  with  different 
institutions, CSOs and  citizens. As the Ombud stated in the annual  report  for 2017,  ‘An 
important element of my work as the Ombudsman […] were regional meetings organised 
throughout  the  country.  In  nearly  all  of  these  meetings,  the  participants  raised  issues 
related  to  discrimination  or  exclusion.  Both  I  and  the  representatives  of  my  Office  have 
made  every  effort  to  ensure  that  each  case  is  properly  explained.’479  This  practice 
continued, and concluded in a special report.480  

479  Ombud, annual report for 2016, p. 3. 
480  Ombud (2020), Ex officio. Non-official report on complaints, talks and meetings with the Ombudsman of the 
7th Term 2015-2020 Adam Bodnar (Z urzędu. Nieurzędowy raport ze skarg, rozmów, spotkań z Rzecznikiem 
Praw Obywatelskich VII Kadencji 2015–2020 Adamem Bodnarem), available at: https://bip.brpo.gov.pl/.  

112 

 
 
 
 
 
11   SENSITIVE OR CONTROVERSIAL ISSUES 

11.1 Potential breaches of the directives at the national level 

Although the 2010 ETA seems to fully implement Directives 2000/43/EC and 2000/78/EC 
(as described above), it raises some doubts and debate.  

A problematic issue highlighted by the Ombud in its first report, published in June 2012, 
and repeated since then, is related to the compensation claim introduced by the ETA. The 
ETA  (Article  13)  refers  to  compensation  (odszkodowanie),  which  seems  to  cover  only 
material (but not non-material) damage and therefore limits protection. The provision for 
compensation  under  the  Act  should  be  widened  to  include  non-material  damages.  It  is 
questionable  whether  both  sanctions  based  on  the  ETA,  as  well  as  the  only  special 
sanction in the Labour Code, meet the criteria of the Directives  (effective, proportionate 
and dissuasive). However, it is currently the subject of debate, and written opinions and 
court  decisions  vary  in  their  views.481  See,  for  instance,  the  case  in  which  the  Court 
awarded  compensation  under  the  ETA,  arguing  that  the  ETA  also  covers  non-material 
damage – in the specified case, damage to the dignity of the party.482  

As  revealed  by  the  administrative  courts  in  the  case  regarding  refusal  of  access  to 
postgraduate  studies, there are limits  to the protection offered against discrimination in 
education.483 The verdict in that case is controversial. The administrative courts declared 
that,  according  to  a  very  formal  interpretation  of  law  and  legal  definitions  of  particular 
legal terms, admission to postgraduate studies may not be  controlled under the judicial-
administrative control procedure.  

As  mentioned  in  Section  2.6.a  above,  failure  to  provide  reasonable  accommodation 
results  in  discrimination  only  in  a  situation  where  there  is  a  ‘traditional’  labour  contract 
(covered by the legal regime of the Labour Code). Unfortunately, there is no provision on 
this  in  respect  of  other  forms  of  employment  (for  instance,  contracts  under  civil  law 
covered by the ETA). This limits the protection.  

11.2 Other issues of concern  

The Law and Justice Party, which formed a Government in October 2015, has never had 
equality issues on its agenda.  

A new trend has been observed by the Ombud and other actors engaged in LGBTI issues 
in the past couple of years following the elections: all court cases relating to the rights of 
LGBTI  persons  that  are  dealt  with  by  the  Ombud’s  Office  attract  attention  from  the 
prosecution  services.  Prosecutors  (exercising  their  right)  then  decide  to  join  all  such 
proceedings,  not  in  order  to  support  the  victim  of  discrimination  or  the  Ombud’s  efforts 
but  as  a  way  to  monitor  what  is  happening  in  court  or  to  represent  the  opposing  party 
rather  than  the  alleged  victim  of  discrimination  (for  example,  in  the  case  against  a 
publishing  company  described  in  Section  3.2.8  above,  and  in  the  case  of  harassment 
caused  by  a  teacher  taking  off  a  cross  from  the  school  wall,  described  in  section 
2.4.b).484 

481  See also: ETA commentary 2017, pp. 192-201. 
482  Toruń District Court, judgment of 6 August 2019, No. I C 469/18; see more information in Section 3.2.7 of 

this report.  

483  Voivodeship Administrative Court, Bydgoszcz, judgment of 18 October 2017, M.J. (Marek Jopp) v. CSMC 
(College), No. II SA/Bd 732/17, available at: http://orzeczenia.nsa.gov.pl/doc/BC5FC53775; Warsaw 
Supreme Administrative Court, judgment of 17 April 2018, available at: 
http://orzeczenia.nsa.gov.pl/doc/157A08408E.  

484  In February 2020, a new development took place. The Prosecutor General/Minister of Justice submitted an 

extraordinary cassation to the Supreme Court demanding that the verdict of the Court of Appeal in Wrocław 
and the Supreme Court be set aside. The Prosecutor General used the power that he was granted by the 
amendment to the law on the Supreme Court (April 3, 2018). According to that law (Article 89(1)), an 

113 

 
 
 
 
 
 
 
 
 
 
 
These attitudes and actions on the part of public bodies and officials (e.g. the action of a 
minister  who  lodged  an  application  for  extraordinary  remedy  against  a  judgment 
establishing discrimination based on  sexual orientation) are worth noting, particularly  in 
the context of the denial of budgetary resources to the Ombud, which has the knock-on 
effect of the Ombud not being able to adequately assist victims of discrimination.  

There  are  two  bodies  in  Poland  that  have  a  mandate  to  deal  with  discrimination:  the 
Ombud (as the equality body) and the Government Plenipotentiary for Equal Treatment. 
There  are  important  developments  with  regard  to  both  those  bodies.  The  Ombud  faces 
problems  related  to  the  budget  of  the  Ombud’s  Office  as  well  as  political  attacks 
(including calls for the Ombud’s appointment to be revoked by the Parliament because he 
represents 
liberal-leftist  views,  supports  LGBT  people  etc.).  The  role  of  the 
Plenipotentiary  for  Equal  Treatment  has  been  marginalised.  The  Office  was  combined 
with  the  Office  of  the  Government  Plenipotentiary  for  Civil  Society  created  in  January 
2016.  Since  the  merger  of  the  two  bodies,  the  role  of  the  Plenipotentiary  in 
discrimination  issues  has  been  minimalised,  the  office  has  been  reduced  and  the 
remaining  staff  directed  to  focus  on  issues  of  civil  society.  In  February  2020,  the 
Plenipotentiary  became  the  Secretary  of  State  in  the  office  of  the  Minister  for  Family 
Affairs.  Therefore,  contrary  to  recommendations  (e.g.  in  CERD’s  2019  Concluding 
observations  report),  the  position  of  the  Plenipotentiary  has  been  additionally 
weakened.485  

In  March  2016,  the  Ombud  expressed  its  concern  over  escalating  racial  tensions  in 
Poland: ‘We can observe an extraordinary wave of hatred on the internet. (…) This is the 
moment  when  words  turn  into  deeds.  About  once  a  week,  or  every  two  weeks  we 
[receive a report] of a racial beating.’486 In 2017, 2018 and 2019, the Ombud continued 
to express its concerns on the increase in racial discrimination and hate speech, including 
at  conferences  such  as  ‘Fight  against  anti-Semitism  and  anti-Gypsyism  in  Poland  – 
monitoring, 
in  Poland:  Diagnosis, 
Consequences, and Methods of Prevention’,488 and on the occasion of the publication of a 
report in the series ‘The principle of equal treatment – law and practice’ entitled Crimes 
motivated  by  prejudices  –  analysis  and  recommendations.489  In  2016,  the  Ombud 
registered around 60 cases of hate speech and violence; in 2017, around 100; in 2018, 
around 90; in 2019, around 100; and in 2020, around 90.490 

intervention,  education’487  and 

‘Antisemitism 

In March 2016, in a complaint to the Constitutional Tribunal, the Ombud challenged the 
constitutionality of the provisions of the ETA ‘in so far as they limit the scope of the Act 
because of the closed catalogue of discriminatory grounds. The law excludes some social 
groups that experience discrimination in many areas of their lives.’491 The Ombud argued 

extraordinary cassation may be lodged for any final judgment of the past 20 years if it is ‘necessary to 
ensure the rule of law and social justice’. 

485  See Law of 23 January 2020 amending the Act on Government Administration Departments and some other 

acts (Dz.U. z 2020, poz. 284), Article 70.  

486  See more at: http://www.thenews.pl/1/9/Artykul/243728,Racial-tension-escalating-in-Poland-human-

rights-ombudsman#sthash.D4vZbvgJ.dpuf, on hate speech and hate crime; see also Ombud, annual report 
for 2017, pp. 66-67. 

487  Information available at: https://www.rpo.gov.pl/pl/content/konferencja-walka-z-antysemityzmem-i-

antycyganizmem-w-polsce-monitoring-interwencja-edukacja.  

488  Information available at: https://www.rpo.gov.pl/pl/content/z-przejawami-nienawisci-nalezy-stanowczo-

walczyc-adam-bodnar-na-konferencji.  

489  Ombud (2017) Crimes motivated by prejudice – analysis and recommendations (Przestępstwa motywowane 

uprzedzeniami. Analiza i zalecenia), Warsaw, available at: 
https://www.rpo.gov.pl/sites/default/files/Przestepstwa%20motywowane%20uprzedzeniami%20ZRT%20nr
%2023%202017.pdf.  

490  Ombud, annual report for 2017, p. 77; Ombud, annual report for 2018, p. 17; for 2019, information 

provided by the Ombud; Ombud, annual report for 2020, p. 52. 

491  See: https://www.rpo.gov.pl/pl/content/wniosek-do-trybunalu-konstytucyjnego-ws-zakresu-stosowania-

ustawy-o-rownym-traktowaniu (this and subsequent quotes translated by author). 

114 

 
 
 
 
 
that: ‘the Constitution (Article. 32) prohibits discrimination on any grounds.’492 According 
to the Ombud, ‘Persons experiencing discrimination that does not fall within the scope of 
the Equal Treatment Act may benefit from legal protection measures provided for in the 
Civil  Code.  However,  their  procedural  situation  is  far  less  favourable  than  those  who 
experience discrimination within the scope of the Equal Treatment Act.’493 In April 2017, 
the  Ombud  withdrew  the  complaint  and  asked  for  discontinuation  (redemption)  of  the 
case. The CT took a  resolution  on discontinuation in  October 2017,  as a  result  of which 
the  case  was  formally  dropped.  The  Ombud  did  not  provide  information  about  this 
decision or its reasons.494  

The  Ombud  also  notes  that  its  ‘office  regularly  receives  complaints  from  citizens 
experiencing  discrimination  by  private  entities,  in  particular  in  the  area  of  access  to 
services. Therefore, it seems that in order to fully implement the European standards of 
operation of equal treatment bodies, it is necessary to enable the equal treatment body 
to  take  direct  intervention  in  cases  that  involve  violations  by  entities  other  than  state 
authorities’.495 

Resolutions  of  municipalities  including  declaration  of  being  free  from  ‘LGBT 
ideology’ 

A number  of Polish municipalities have adopted resolutions  that include a declaration  of 
being free from the so-called  ‘LGBT ideology’.  By 2020, the number  of declarations had 
reached  over  55  –  all  of  them  directly  mention  LGBTI  matters  (in  titles  or  content),  in 
most cases declaring ‘freedom from LGBT ideology’. 

Simultaneously,  a  number  of  regions,  counties  and  municipalities  (over  35  as  of  2020) 
have  adopted  ‘Charters  of  Family  Rights’,  which  discriminate  against  single  parents  and 
LGBTI families by strongly supporting and favouring only the heterosexual family model. 
However,  their  unlawfulness  is  less  direct  and  harder  to  argue  against.  They  do  not 
mention even once the term  ‘LGBT’, nor they do not talk about sexual orientation; they 
focus,  as  their  authors  underline,  on  stressing  conservative  values  and  the  traditional 
model of the family. 

The first resolutions including a declaration by municipalities that they were free from the 
so-called  ‘LGBT  ideology’  were  adopted  in  March  2019.  Shortly  thereafter,  other 
municipalities and regional authorities followed.  

Resolutions  were  adopted  by  different  units  of  local  government  (territorial  units): 
regional  councils  of  voivodships,  councils  of  poviats  and  councils  of  communes. 
Resolutions  of  bodies  differ  significantly  in  nature  and  legal  effects,  and  thus  so  do  the 
requirements and criteria for assessing their legality. Resolutions of legislative organs of 
local government units can be classified, for instance, as imperious (imperative) or non-
imperious  (more  of  a  programme  nature,  or  declaring  the  authors’  intentions),  as  of 
internal or external character (binding only  organs or binding also  external  subjects).496 

492  See: https://www.rpo.gov.pl/pl/content/wniosek-do-trybunalu-konstytucyjnego-ws-zakresu-stosowania-

ustawy-o-rownym-traktowaniu. 

493  Ombud, ‘Application to the Constitutional Tribunal regarding the Act on equal treatment’ (‘Wniosek do 
Trybunału Konstytucyjnego w sprawie ustawy o równym traktowaniu’), 31 March 2016, available at: 
https://www.rpo.gov.pl/pl/content/wniosek-do-trybunalu-konstytucyjnego-ws-zakresu-stosowania-ustawy-
o-rownym-traktowaniu. 

494  For full information on the case, see the Constitutional Tribunal website, available at: 

http://trybunal.gov.pl/postepowanie-i-orzeczenia/postanowienia/art/9882-ustawa-o-wdrozeniu-niektorych-
przepisow-unii-europejskiej-w-zakresie-rownego-traktowania/.  

495  Ombud, annual report for 2019, p. 26.  
496  See the expertise of Professor. D. Sześciło, Opinion on the admissibility of complaints lodged by the Ombud 
regarding resolutions of the councils of local government units on ‘suppressing LGBT ideology’ (Opinia w 
sprawie dopuszczalności zaskarżenia przez Rzecznika Praw Obywatelskich uchwał rad niektórych jednostek 
samorządu terytorialnego w sprawie „powstrzymywania ideologii LGBT), available at 

115 

 
 
 
 
 
 
 
 
 
In most cases, the resolutions use the expression ‘on restraining/stopping/suppressing497 
LGBT  ideology’.  In  fact,  they  are  an  attempt  to  create  a  new  public  task  for  local 
government in the form of ‘restraining LGBT ideology’.  

The subject of discriminatory resolutions passed by Polish local and regional authorities is 
widely  discussed  in  public  and  political  debate  in  Poland  and  abroad;  see,  inter  alia, 
information  on  the  European  Parliament  resolution  of  18  December  2019.498  During  the 
visit  of  Vice-President  Vera  Jourova  to  Poland  (focused  on  the  rule  of  law  and  the 
judiciary),  this  topic  was  raised  during  a  meeting  with  the  Commissioner  for  Human 
Rights (Ombud) on 28 January 2020.499 Finally, the issue was raised by President von der 
Leyen in her State of the Union Address in September 2020.500 

In  his  statement,  the  Ombud  condemned  such  declarations.501  The  Ombud  decided  to 
focus  on  resolutions  of  the  first  type  (on  ‘freedom  from  LGBT  ideology’)  in  his  legal 
analyses and actions, and brought a number of complaints to the Polish courts (see more 
at section 12.2 below).  

The  Ombud  receives  complaints  from  LGBT  people  (and  their  allies)  about  resolutions, 
but  all  complaints  relate  rather  to  citizens'  concerns  and  uncertainties  in  relation  to  the 
resolutions  (what  the  meaning  of  the  resolution  is,  what  consequences  it  will  have  for 
their legal situation, etc.). There are no complaints regarding concrete situations in which 
unequal  treatment  has  already  happened  that  resulted  from  such  a  resolution.  In 
complaints lodged by the Ombud to administrative courts, the Ombud argued, however, 
that such concerns, relating to resolutions alone, could be considered a violation of civil 
rights, in accordance with the concept of a freezing effect resulting from the Strasbourg 
case law. 

Indirect connections between resolutions and the actual situation can also be seen in the 
education  system.  The  Ombud  knows  of  various  cases  (even  a  ‘trend’)  of  schools 
resigning  from  or  cancelling  anti-discrimination  workshops  and  equal  treatment  events, 
due to the fear that controversial LGBT topics will appear. However, there are no specific 
examples  of  situations  in  which  an  event  has  been  cancelled  in  a  municipality  that  has 
adopted a resolution, in order to show that one event can be directly linked to another. 

Pandemic and equal treatment 

In  the  opinion  of  the  Ombud,  the  scale  of  infringements  of  the  rights  and  freedoms 
during the pandemic is very large.502 Most of the information regarding the limitations of 
rights, and the problems with which people are struggling due to the pandemic, may be 
found  on  a  special  sub-section  of  the  Ombud’s  website,  entitled  ‘Coronavirus  and 
epidemic in Poland’.503  

The  Ombud  undertook  different  interventions  related  to  the  pandemic  situation 
(examples  are  provided  in  the  report).  One  further  example  concerns  the  rights  of  the 
elderly. The Ombud appealed to the Ministry of Family and Social Policy to get involved in 

https://www.rpo.gov.pl/sites/default/files/Opinia%20dr.%20hab.%20Dawida%20Sześciło%20ws.%20uchw
ał%20antyLGBT%20.pdf.  
497  Powstrzymywanie in Polish.  
498  See: https://www.europarl.europa.eu/doceo/document/TA-9-2019-0101_EN.html.  
499  See: https://www.rpo.gov.pl/pl/content/vera-jourova-spotkała-sie-z-rpo.  
500  See: https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_20_1655.  
501  See: https://www.rpo.gov.pl/pl/content/stanowisko-rpo-ws-przyjmowania-przez-organy-wladzy-publicznej-

deklaracji-przeciw-ideologii-lgbt#_ftn2. 

502  ‘Ombud on government activities during the epidemic: the scale of violations is shocking’ (‘RPO o 

działaniach rządu w czasie epidemii: skala naruszeń prawa jest porażająca’), 25 May, interview by Marcin 
Wyrwał with Deputy Ombud Maciej Taborowski, available at: https://wiadomosci.onet.pl/tylko-w-
onecie/koronawirus-w-polsce-rpo-o-masowych-naruszeniach-prawa-przez-rzad-w-czasie-epidemii/v6cnrkx.  

503  See: ‘Coronavirus and epidemic in Poland’, available at: https://www.rpo.gov.pl/pl/kategoria-

tematyczna/koronawirus-i-epidemia-w-polsce.  

116 

 
 
 
 
 
 
 
 
 
defending the rights of older people at the international level by engaging Poland in the 
work on the Convention on the Elderly. The Ombud prepared a common position together 
with  the  German  Institute  for  Human  Rights  –  on  ‘Human  rights  of  the  elderly  during  a 
pandemic’  -  on  the  occasion  of  the  European  Day  of  Intergenerational  Solidarity  (and 
forwarded  it  to  the  Ministry  asking  for  its  analysis  and  dissemination  among  public 
authorities).504  The  position  urges  authorities  to  undertake  a  non-discriminatory  and 
proactive approach towards the needs of the elderly.  

No issues of concern were identified regarding the use of artificial intelligence in relation 
to the implementation of the national legislation transposing the directives, or regarding 
the regulation of artificial intelligence. 

504  ‘Human rights of the elderly during a pandemic’ (‘Prawa człowieka osób starszych podczas pandemii’), 25 

April 2020, available at: 
https://www.rpo.gov.pl/sites/default/files/Wspólne%20oświadczenie%20RPO%20i%20DIfMR%20w%20spra
wie%20praw%20osób%20starszych%20podczas%20pandemii.pdf.  

117 

 
 
 
 
 
12  LATEST DEVELOPMENTS IN 2020 

12.1 Legislative amendments 

Since  2016,  the  function  of  the  Government  Plenipotentiary  for  Equal  Treatment  has 
been conducted by a new Plenipotentiary, who was appointed to combine two positions – 
the  second  was  the  newly  created  position  of  Government  Plenipotentiary  for  Civil 
Society  (Pełnomocnik  Rządu  do  spraw  Społeczeństwa  Obywatelskiego).  In  February 
2020, the Office of the Plenipotentiary for Equal Treatment was separated from the Office 
of  the  Government  Plenipotentiary  for  Civil  Society  and  moved  from  the  Chancellery  of 
the Prime Minister to the Ministry of Family and Social Policy (and on  5 March 2020, the 
deputy  minister  was  appointed  to  the  function  of  the  Plenipotentiary  for  Equal 
Treatment). The relevant Article 20(3) of the ETA was amended.505 

12.2 Case law 

Relevant discrimination ground(s): Religion or belief 
Name of the court: Date of decision:  
Regional Court (Sąd Rejonowy) in Torun (first instance) (6 August 2019) 
District Court (Sąd Okręgowy) in Torun (second instance) (21 August 2020) 
Name of the parties: M. J. v. the College of Social and Media Culture in Toruń506 
Reference number: I C 469/18 and VIII Ca 1058/19  
Link: N/A 
Brief  summary:  In  a  decision  of  March  2017,  the  Dean  of  the  College  of  Social  and 
Media  Culture  (CSMC)  decided  not  to  accept  M.J.  for  postgraduate  studies  in 
environmental protection – ecology and management. The Dean stated that M.J. did not 
attach  as  part  of  the  application  procedure  a  required  document:  the  opinion  of  the 
parish priest from the applicant’s place of residence.  

Earlier, however, in a letter of March 2017, M.J. had been informed that he was admitted 
to the course of study.  

M.J. appealed the decision to the rector of the College, stating that: a) he had read the 
list of documents required at the recruitment stage; b) in January 2017, he had written 
an  email  to  the  College  asking  whether  the  delivery  of  an  opinion  issued  by  the  parish 
priest  was  obligatory  in  the  case  of  studies  subsidised  by  the  National  Fund  for 
Environmental Protection and Water Management; c) he had received a reply stating that 
if he did not want to provide an opinion, he should send a statement stating the reasons 
why the opinion had not been submitted; d) M.J. did so and received confirmation of the 
submission of the documents required; e) subsequently, M.J. received a positive decision 
on admission to the College, including information on the required transfer of tuition fees 
for the first semester; f) M.J. transferred the tuition fees and appeared at the College in 
order to receive the indeks (student record book); g) on this occasion, the dean informed 
M.J. that he was not admitted to the College, and after a few days M.J. received a written 
rejection decision. 

In  his  appeal  to  the  rector,  M.J.  argued  that  the  refusal  was  in  conflict  with  the 
constitutional  obligation  of  equal  treatment  in  education  regardless  of  religion. 
Additionally,  the  course  was  subsidised  from  public  funds.  Thus,  it  should  be  available 

505  Therefore, contrary to recommendations (e.g. in CERD (2019), Concluding observations on the combined 
twenty-second to twenty-fourth periodic reports of Poland), the position of the Plenipotentiary has been 
additionally weakened. See Law of 23 January 2020 amending the Act on Government Administration 
Departments and some other acts (ustawa z 23 stycznia 2020 r. o zmianie ustawy o działach administracji 
rządowej oraz niektórych innych ustaw) (Dz.U. z 2020, poz. 284), Article 70. See also: 
https://www.gov.pl/web/rodzina/anna-schmidt-rodziewicz-nowym-wiceministrem-rodziny-pracy-i-polityki-
spolecznej. 

506  The College of Social and Media Culture (Wyższa Szkoła Kultury Społeczniej i Medialnej) – a private 

vocational college in Toruń, Poland.  

118 

 
 
 
 
 
 
 
 
 
universally,  without  using  the  criterion  of  religion,  even  if  it  is  run  by  a  College  with  a 
religious profile. The Rector upheld the decision. According to the Rector, Article 70(5) of 
the Constitution of the Republic of Poland provides higher schools (universities, colleges) 
with full autonomy and Article 73 provides for freedom of teaching.  

In  his  civil  complaint  to  the  court,  M.J.  alleged  a  violation  of  (among  others)  the 
Constitution, the European Convention on Human Rights and Fundamental Freedoms, the 
Act  on  the  Implementation  of  Certain  Regulations  of  the  European  Union  in  Equal 
Treatment (ETA) and also an infringement of the Law on Higher Education, Act on Public 
Finance in connection  with the Environmental Protection Act and Code  of Administrative 
Procedure.  

M.J. alleged a violation of his right to equal treatment and non-discrimination in social life 
for any reason, including a violation of his right to professional training by simultaneously 
violating the principle of autonomy of higher education, refusing to accept the claimant’s 
application  to  the  secular  post  graduate  studies  due  to  his  failure  to  submit  a  written 
opinion by the priest. 

The  complaint  was  brought  by  PTPA507  on  behalf  of  M.  J.,  who  was  represented  by  one 
lawyer from PTPA and two local lawyers collaborating with PTPA.  

The  District  Court  (first  instance)  found  indirect  discrimination  on  the  ground  of 
religion/belief  and  awarded  PLN 5 000  (EUR 1 200)  in  compensation  to  the  claimant,  as 
well  as  PLN 1 167  (EUR 250)  for  the  reimbursement  of  legal  expenses.  The  verdict  was 
challenged by the College in the appeal.  

The  Regional  Court  (second  instance),  after  a  meeting  held  in  camera,  dismissed  the 
appeal  of  the  College,  agreed  with  all  the  findings  of  the  first  instance  court  and 
additionally  awarded  the  claimant  PLN 450  (EUR 100)  as  reimbursement  of  the  costs  of 
legal representation in the appeal proceedings. When the respondent did not execute the 
judgment voluntarily, the claimant requested the court bailiff to transfer the  funds from 
the  College.  The  court  bailiff  transferred  to  M.J.’s  bank  account  the  compensation 
awarded  from  the  College  on  7  October  2020.  M.J.  declared  in  the  media  that  he  had 
decided  to  spend  the  money  awarded  by  enrolling  to  the  same  College  for  other 
postgraduate studies.  

This is an important ruling, and not just because the Court found indirect discrimination. 
It  is  especially  interesting  because  the  Court  awarded  PLN 5 000  (EUR 1 200)  as 
compensation  (as  requested  by  the  claimant)  based  on  the  ETA.  Previously,  courts  had 
tended (in the very few such cases that were brought to justice) to award compensation 
only  for  material  damage,  arguing  that  that  is  what  the  ETA  covers.  In  this  case, 
however,  the  Court  argued,  quoting  European  law  and  rulings  by  the  CJEU,508  that  the 
compensation  available  under  ETA  also  covers  non-material  damage,  including  damage 
to  the  dignity  of  the  party  (however,  it  still  underlined  that  the  punitive  element  is  not 
included in Polish law). The Court did not consider filing for a preliminary reference to the 
CJEU. 

The  Court  found  indirect  discrimination,  unlike  the  claimant  who  argued  that  there  had 
been  direct  discrimination.  The  Court  stated  that:  ‘The  requirement  to  provide  such  an 
opinion is seemingly neutral as it applies to all candidates for studies. In fact, however, it 
is only possible for people who actively participate in the life of the parish to do so, thus 
excluding  both  non-believers  and  non-Christian  believers  from  the  group  of  people  who 
can study at the university (in fact, all non-Christian believers  other than the  practising 

507  Polskie Towarzystwo Prawa Antydyskryminacyjnego (Polish Society of Anti-Discrimination Law).  
508  Including the following rulings: judgment of 13 February 1985, Francoise Gravier v. the city of Liege, C-

293/83, EU:C:1985:69; judgment of 2 February 1988, Vincent Blaizot v. the University of Liege and others, 
C-24/86, EU:C:1988:43.  

119 

 
 
 
 
 
 
 
 
 
Catholic  because  –  although  this  was  not  explicitly  expressed  –  given  the  nature  of  the 
university in question, it can be assumed that this was the opinion of the parish priest of 
the Catholic church)’. 

The  verdict  of  the  second  instance  court  is  final.  However,  the  National  Public 
Prosecutor’s  Office  asked  the  Regional  Court  for  the  case  file.  The  case  file  was  sent  to 
the Prosecutor’s Office on 25 September 2020. Theoretically, this could indicate that the 
Prosecutor  General  is  considering  initiating  an  extraordinary  cassation  procedure  before 
the  Supreme  Court.  This  procedure  was  introduced  by  the  current  Government  and 
allows  the  Prosecutor  General  to  challenge  any  final  verdict  before  the  Supreme  Court. 
So  far,  there  has  been  no  information  from  the  Prosecutor  General  on  bringing  such  a 
cassation complaint.  

It  should  also  be  noted  that  the  claimant  has  lost  his  case  in  the  administrative  courts 
(both instances); additionally, his complaint is pending in the European Court of Human 
Rights.509 

Relevant discrimination ground(s): Sexual orientation 
Name of the court: Date of decision: Reference number: 
Provincial Administrative Court in Gliwice (July 14, 2020) III SA/Gl 15/20 
(http://orzeczenia.nsa.gov.pl/doc/64BDAC55E5)  
Provincial Administrative Court in Warsaw (July 15, 2020) VIII SA/Wa 42/20 
(http://orzeczenia.nsa.gov.pl/doc/62A1A3C0D7)  
Provincial Administrative Court in Lublin (August 6, 2020) III SA/Lu 7/20 
(http://orzeczenia.nsa.gov.pl/doc/C2138D9662)  
Provincial Administrative Court in Kielce (September 11, 2020) II SA/Ke 382/20 
(http://orzeczenia.nsa.gov.pl/doc/6F1BD26B84)  
Name of the parties: Ombud v. local government  
Link:  Information  on  the  Ombud’s  website:  https://www.rpo.gov.pl/pl/content/wsa-nie-
zbadal-merytorycznie-skarg-rpo-na-dwie-uchwaly-anty-lgbt  
Brief  summary:  A  number  of  Polish  municipalities  have  adopted  resolutions  (since 
March 2019) that include a declaration of being free from the so-called ‘LGBT ideology’. 
In  his  statement,  the  Ombud  condemned  such  declarations.510  Nevertheless,  by  2020, 
the  number  of  declarations  had  reached  over  55  –  all  of  them  directly  mention  LGBTI 
matters (in titles or content), in most cases declaring ‘freedom from LGBT ideology’. 

Simultaneously,  a  number  of  regions,  counties  and  municipalities  (over  35  as  of  2020) 
adopted ‘Charters of Family Rights’ which discriminate against single parents and LGBTI 
families  by  strongly  supporting  and  favouring  only  the  heterosexual  family  model. 
However, their unlawfulness is less direct and harder to argue. They do not mention even 
once  the  term  ‘LGBT,  nor  do  they  talk  about  sexual  orientation;  they  focus,  as  their 
authors underline, on stressing the conservative values and the traditional model  of the 
family. 

The  Ombud  decided  to  focus  on  resolutions  of  the  first  type  (on  ‘freedom  from  LGBT 
ideology’) in his legal analyses and actions.  

In  December  2019,  the  Ombud  lodged  complaints  against  five  selected  resolutions  by 
communes’ councils511 with five Regional Administrative Courts, with the aim of revoking 

509  See more in section 3.2.7 above. 
510  See: https://www.rpo.gov.pl/pl/content/stanowisko-rpo-ws-przyjmowania-przez-organy-wladzy-publicznej-

deklaracji-przeciw-ideologii-lgbt#_ftn2. 

511  See: Ombud, annual report for 2020, pp. 60-62. 

120 

 
 
 
 
 
 
 
 
the  resolutions.  Later,  in  March  2020,  the  Ombud  filed  four  additional  complaints,  so 
there were nine altogether.512 

In the opinion of the Ombud: Those resolutions are unlawful and are not a mere symbolic 
declaration  without  legal  effects;  they  illegitimately  interfere  with  fundamental  human 
rights and violate the principle of equal treatment; they exceed the competences of local 
and  regional  governments;  they  are  in  breach  of  the  constitution,  Polish  administrative 
law, international and EU law (including the principle of free movement of persons). 

The Ombud argues that the resolutions: ‘certainly result in a chilling effect and could lead 
to unequal treatment; the applicability of their provisions is questionable, as they impose 
legally  unfounded  obligations  which  cannot  be  fulfilled  by  the  addressee’.  With  no 
intention  of  underestimating  the  threat  the  resolutions  cause,  the  Ombud  gives  an 
assurance that: ‘if the acts are in any case applied in practice with the result of unequal 
treatment  or  other  harm  to  an  individual’,  he  will  ‘make  efforts  to  exercise  other  legal 
mechanism  of  protection  in  order  to  safeguard  the  fundamental  rights  of  every  Polish 
citizen’.  

In March 2020, the Ombud extended the five complaints submitted in December 2019 to 
include  arguments  based  on  European  law.513  In  the  opinion  of  the  Ombud,  the 
resolutions  violate  the  EU  Charter  of  Fundamental  Rights  and  the  Treaty  on  the 
Functioning  of  the  European  Union.  They  violate  the  right  to  respect  for  private  and 
family  life,  freedom  of  expression  and  the  prohibition  of  discrimination  on  grounds  of 
sexual orientation and gender identity. Furthermore, they discourage EU citizens  – who, 
for  example,  identify  themselves  as  LGBT  people  –  from  staying  in  areas  where  such 
resolutions apply. In a case in which the Polish courts had doubts, the Ombud proposed 
that  the  courts  refer  a  question  for  preliminary  ruling  to  the  CJEU  –  whether  European 
law  allows  a  Member  State's  local  government  to  adopt  a  resolution  declaring  freedom 
from ‘LGBT ideology’.  

In  the  four  rulings  listed  above,  courts  invalidated  four  challenged  resolutions  by  local 
government on ‘being free from LGBT ideology’. Taking into account all the allegations of 
the  Ombud,  the  courts  found  that  the  acts  concerned  matters  relating  to  public 
administration and contained  administrative  ruling elements. The courts recognised that 
the  resolutions  interfered  with  human  rights  and  freedoms.  The  courts  recognised  that, 
inter  alia,  the  resolutions  unjustifiably  differentiated  the  position  of  LGBT  people  and 
violated the Constitution. The verdicts were appealed, and the cases are pending. 

According  to  the  Ombud,  it  does  not  matter  that  the  resolutions  use  the  term  ‘LGBT 
ideology’  and  not  just  the  abbreviation  ‘LGBT’.  In  the  justification  for  its  judgment,  the 
Provincial  Administrative  Court  in  Gliwice  emphasised  that  the  term  ‘LGBT  ideology’  de 
facto  also  refers  to  LGBT  people,  and  explaining  that  LGBT  is  an  ideology  and  not  a 
people is turning a blind eye to reality. None of the rulings is final.  

512  See the information, legal opinion and text of the complaints lodged in December 2019 at: 

https://www.rpo.gov.pl/pl/content/rpo-skarzy-do-sadow-uchwaly-samorzadow-o-przeciwdzialaniu-ideologii-
lgbt. See the information and text of the complaints lodged in March 2020 at: 
https://www.rpo.gov.pl/pl/content/rpo-uchwaly-anty-lgbt-sprzeczne-takze-z-prawem-europejskim. 

513  See: https://www.rpo.gov.pl/pl/content/rpo-uchwaly-anty-lgbt-sprzeczne-takze-z-prawem-europejskim.  

121 

 
 
 
 
 
 
 
 
 
ANNEX 1: MAIN TRANSPOSITION AND ANTI-DISCRIMINATION LEGISLATION 

Country:  
Date:   

Poland 
31 December 2020 

Title  of  the  Law:  Act  on  the  Implementation  of  Certain  Provisions  of  the 
European Union in the Field of Equal Treatment 
Abbreviation: ETA 
Date of adoption: 03.12.2010 
Latest relevant amendment: 29.04.2016 
Entry into force: 01.01.2011 
Web  link:  https://www.rpo.gov.pl/en/content/act-3rd-december-2010-implementation-
some-regulations-european-union-regarding-equal    
Grounds  covered: gender,  race,  ethnic origin,  nationality, citizenship,514  religion, belief, 
political opinion, disability, age and sexual orientation 
Civil/administrative/criminal law 
Material scope: Full scope as covered by Directives 2000/43 and 2000/78: 
employment, access to  goods and services (including housing), social  protection, social 
advantages, education 
Principal  content:  Almost  verbatim  implementation  of  5  Directives,  including  2000/43 
and 2000/78: 
-  

prohibition  of  direct  and  indirect  discrimination,  instructions  to  discriminate 
harassment and victimisation  
right to compensation for infringement of equal treatment 
designation of Ombud as an equality body 

-  
-  

Title of the Law: Act on the Labour Code (implementation amendment) 
Abbreviation: 
Date of adoption: 14.11.2003 
Latest relevant amendment: major amendment 21.11.2008 
Entry into force: 01.01.2004 (18.01.2009) (01.01.2011) 
Web  link:  http://www.przepisy.gofin.pl/przepisy,2,9,9,212,,,ustawa-z-dnia-26061974-r-
kodeks-pracy.html  
Grounds  covered:  gender,  age,  disability,  race,  religion,  nationality,  political  opinion, 
membership of a trade union, ethnic origin, belief, sexual orientation, employment for a 
definite or indefinite period of time, employment part-time or full-time; the list remains 
open 
Civil law: labour law 
Material scope: Employment 
Principal content:  
-  

prohibition  of  direct  and  indirect  discrimination,  instructions  to  discriminate 
harassment and victimisation 
right to compensation for infringement of equal treatment 
obligation to provide information on equal treatment rules 

-  
-  

Title of the Law: Act on the Commissioner for Human Rights 
Abbreviation: 
Date of adoption: amendment adopted on 03.12.2010 
Latest relevant amendment: 03.12.2010 
Entry into force: 01.01.2011 
Web link: http://rpo.gov.pl/pl/content/ustawa-o-rzeczniku-praw-obywatelskich    
Grounds covered: not listed 
Civil/administrative/criminal law 
Material scope: full scope  

514  Protection is limited to certain categories of persons only. Discrimination on the grounds of citizenship as 

such is not prohibited in the ETA. See more in Section 2.1.  

122 

 
 
 
 
 
 
Principal  content:  Designation  of  Commissioner  for  Human  Rights  (Ombud)  as  an 
equality body 

123 

 
 
 
 
 
 
 
ANNEX 2: INTERNATIONAL INSTRUMENTS 

Country:  
Date:   

Poland 
31 December 2020 

Instrument  Date of 

signature  

Date of 
ratificatio
n  

Derogations
/ 
reservations 
relevant to 
equality and 
non-
discriminatio
n 

Right of 
individual 
petition 
accepted? 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

26.11.199
1 

19.01.1993  No 

Yes 

Yes 

Not signed  No 

25.10.200
5 

No 

No 

No 

02.03.196
7 

18.03.1977  No 

No 

Ratified 
collective 
complaints 
protocol? 
No 
Yes 

No 

No 

Yes 

01.02.199
5 

02.03.196
7 

07.03.196
6 

20.12.2000  No 

N/A 

Yes 

18.03.1977  No 

N/A  

Yes 

05.12.1968  No 

Yes 

Yes 

08.05.1961  No 

N/A  

Yes 

European 
Convention 
on Human 
Rights 
(ECHR) 
Protocol 12, 
ECHR 

Revised 
European 
Social 
Charter 

International 
Covenant on 
Civil and 
Political 
Rights 
Framework 
Convention 
for the 
Protection of 
National 
Minorities 
International 
Covenant on 
Economic, 
Social and 
Cultural 
Rights 
Convention 
on the 
Elimination 
of All Forms 
of Racial 
Discrimina-
tion 
ILO 
Convention 
No. 111 on 
Discriminatio
n 

124 

 
 
 
 
 
 
 
Instrument  Date of 

signature  

Date of 
ratificatio
n  

Derogations
/ 
reservations 
relevant to 
equality and 
non-
discriminatio
n 

Right of 
individual 
petition 
accepted? 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

29.01.199
0 

30.03.200
7 

Convention 
on the 
Rights of the 
Child 
Convention 
on the 
Rights of 
Persons with 
Disabilities  

07.06.1991  No 

N/A  

Yes 

06.09.2012  Reservations 

and 
interpretative 
declaration  – 
please 
see 
below. 

Yes 

No 
Poland  has 
not  signed 
the 
Convention’
s  Optional 
Protocol. 

Convention on the Rights of Persons with Disabilities – reservations 

- 

- 

- 

‘The Republic of Poland understands that Article 23(1)(b) and Article 25(a) shall not 
be interpreted in a way conferring an individual right to abortion or mandating state 
party to provide access thereto, unless that right is guaranteed by the national law.’ 
Reservations  to  Article  23(1)(a)  of  the  Convention  until  relevant  domestic 
legislation  is  amended.  Until  the  withdrawal  of  the  reservation  a  disabled  person 
whose  disability  results  from  a  mental  illness  or  mental  disability  and  who  is  of 
marriageable  age,  cannot  get  married  without  the  court’s  approval  based  on  the 
statement  that  the  health  or  mental  condition  of  that  person  does  not  jeopardise 
the  marriage,  nor  the  health  of  prospective  children  and  on  condition  that  such  a 
person has not been fully incapacitated.  These  conditions  result from  Article 12(1) 
of the Polish Code on Family and Guardianship. 
One interpretative declaration: ‘The Republic of Poland declares that it will interpret 
Article 12 of the Convention in a way allowing the application of the incapacitation, 
in the circumstances and in the manner set forth in the domestic law, as a measure 
indicated  in  Article  12(4),  when  a  person  suffering  from  a  mental  illness,  mental 
disability or other mental disorder is unable to control his or her conduct.’  

125 

 
 
 
 
 
 
 
 
 
 
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