Implementing the EU Directive on Predictable and Transparent Working Conditions in Poland

The deadline for member states to implement the law expired on August 1, 2022. Similarly, to a number of other member states, the Polish government failed to promptly prepare the implementing bill on time. It appears that the changes will take effect in Poland in the spring of 2023, so below we have provided a Q&A setting out a brief description of what will change in the existing legal status in Poland.

What is the scope of changes being introduced by implementing the directive?

The modifications are intended to increase predictability and transparency of employees’ working conditions. They comprise a lengthy list of employment-related information that employers must give employees when they begin working, as well as a number of rights employees are entitled to exercise to protect against unfair treatment or termination. Also, a there will be a change to how probationary employment contracts can be concluded.

What modifications are going to be made to probationary employment contracts?

Currently, under the Polish Labor Code a probationary employment contract can last no more than three months. This general rule will stay unchanged, yet under the new legislation, if followed by a fixed-term employment contract, the length of the probationary period will vary:

For fixed-term contracts of no longer than six months, the preceding maximum probationary period is one month;
For fixed-term contracts lasting from six to 12 months, the preceding maximum probationary period is two months.
Additionally, if justified by the type of work, the probationary period may be extended once, by mutual agreement of the parties, for a maximum of one month, keeping the probationary period’s maximum length to three months.

Provided both parties agree in the employment contract, the probationary period may also be extended by annual leave taken as well as for other excused absences of the employee.

The current legal framework allows for a second probationary contract if at least three years has passed since termination of the employee’s previous work contract and the new contract is to perform the same type of job. Under the new legislation, however this is forbidden; a probationary contract can only be concluded again if the employee is hired for a different kind of work.

What information must employees receive in the content of an employment contract?

Until now, the employer had to include the following information in the employment contract:

• Type of work
• The place where the work is performed
• The remuneration for the work corresponding to the type of work, with an indication of the components of remuneration
• Working hours
• The date of work commencement
• The changes in this regard are relatively minor—under the new legislation it will be possible to indicate several places of performing work.

In addition, it will be necessary to clearly indicate in the employment contract the duration or end date of the probationary period contract, as well as to include (if so, agreed by the parties) a provision for extending the contract for vacation leave or sick leave. The parties will also be able to indicate if they plan to conclude a fixed-term employment contract after the probationary period and if so, for how long.

In the case of a fixed-term employment contract, it will be necessary to specify its duration or end date.

Please note that these changes affect the content of currently used employment contract, therefore please consider updating the employment contract templates you use.

What additional information must the employee receive?
Not later than seven (7) days after the employee begins work, the employer must have provided at least the following information:

The employee’s daily and weekly working hours and if the employee work full time or in different model

• Work breaks entitlement
• Daily and weekly rest entitlement
• Rules on overtime work and overtime compensation
• For shift work—the rules on transitioning from shift to shift
• When the employee has several workplaces—rules on movement between them
• Entitlements to other remuneration and benefits, in cash or in kind, than those agreed in the employment contract
• The amount of paid leave, in particular annual leave; if this is not possible to determine at the time of the information is provided, then the rules for determining and granting leave
• Rules for terminating the employment relationship, including formal requirements length of the notice period time limit for appeal to the labor court or,
• (if it isn’t possible to determine the length of the notice period at the time this information is provided) the method for determining the notice period
• The right to training (when provided by the employer) in particular, the general principles of the employer’s training policy
• Any collective bargaining or other collective agreements that cover the employee (if there is an applicable collective agreement concluded outside the workplace by joint bodies or institutions, the name of those bodies or institutions)
• If the employer has not established work regulations—the time, date, place and frequency of payment of salary (as well as for night work) and the method used by the employer for confirming the employee’s arrival and presence at work and the rules on absence from work

No later than thirty (30) days after employees begin work, the employer must inform them of the chosen social security institution where their employment-related contributions are paid and about the protection related to social security provided by the employer; this does not apply if the employee chooses the social security institution.

Please note that these changes affect the content of currently used employment contract, therefore please consider updating the employment contract templates you use.

What information should be provided to employees before they go abroad on a business trip?

Currently, the employer only needs to specify the duration of the work abroad, the currency in which the salary will be paid, the benefits due to the employee for working abroad as well as the conditions for the employee’s return to the country.

After the changes, employers will be obliged to inform employees going abroad on a business trip of the following:

• The country or countries where the work outside the country is to be performed
• The expected duration of the work outside the country
• The currency the employee will be paid in
• Benefits, in cash or in kind, related to the performance of the work outside the country
• Provision or lack of provision for the employee’s return to Poland
• The conditions of the employee’s return to the country—if such return is provided
• Please note that these changes will affect the content of various internal regulations, such as business trip regulations, so it seems reasonable to update these.

Can a currently employed employee ask for additional information about their employment as a result of the directive?

The new law indicates that employees who are employed when this new law enters into force can request extended information about their employment terms in line with the directive. The employer has three months to respond to the request. That said, the employer is under no obligation to inform its employees about this right.

Can an employee request changes in the employment contract, in particular, a change in the type of indefinite employment contract or for more predictable and safer working conditions?

Yes, once employees are employed for more than six months, they may make this kind of request to the employer—no more than once a year.

The employer should—to the best of its abilities—agree with the employee’s request. The employer has one month to respond to the employee’s request, in writing or electronically. If the employer chooses not to grant the employee’s request, it must justify the rejection.

Please note that informing employees in their employment contract of this right could be viewed as a good practice, so it might be reasonable to reevaluate employment contract templates.

Can an employer prevent employees from taking up parallel employment?

An employer may only prohibit an employee from working for another competitive entity by concluding a noncompete agreement, with the mutual consent of both parties. This position has long been expressed in the jurisprudence of the Polish Supreme Court and will soon find a place in the Labor Code.

Please note that this new stipulation may impact current employment contracts concluded with your employees, so it might be useful to reevaluate their content.

Who covers the cost of mandatory employee training?

Employers are obliged to cover the costs of training employees if it is necessary for the performance of a specific type of work or work in a specific position and this obligation results from the provisions of a collective bargaining, internal rules, legal regulations or the employment contract. In addition, this training must take place, to the greatest extent possible, during the employee’s working hours. If training must take place outside the employee’s normal working hours, it is still considered as working time. This also applies if trainings are ordered by an employer in the form of a formal instruction.

Please note that this amendment might necessitate some changes to the content of internal regulations regarding employee trainings, if your business has them.

Are employees protected from unfavorable treatment following their exercise of a right under labor law?

Yes, currently the principle of equal treatment in employment generally protects employees from unfavorable treatment after having exercised their rights. After the implementation of the directive, they will also be protected from adverse treatment resulting from an employee’s exercise of any right arising from a violation of labor laws.

Please note that this amendment might require a change in your internal antidiscrimination policies.

How are employees protected from unjustified terminations of employment under this directive?

Employees are protected from termination of employment with or without notice, if the termination resulted from any of the following:

• The employee requests a different type of employment contract and for more transparent and secure working conditions.
• The employee has a parallel employment with another employer (does not apply to prohibitions established in the form of a noncompete agreement).
• The employee asks for information that the employer is obliged to provide in connection with the performance of work.
• The employee exercises the right to request that the employer cover the cost of obligatory trainings or those mandated by the employer.
• Furthermore, the employer bears the burden of proof to explain that the termination was not based on any facts prohibited by the law.

When will the regulations come into effect?

We anticipate that the legislation will come into force soon, not later than in the second quarter of the year 2023.

By Aleksandra Minkowicz-Flanek, Partners and Magda Slomska, Counsel, Dentons