Further changes in labour law: good for the employee, and not necessarily for the employer

Under the amended provisions of the Code of Civil Procedure, as of September 22, 2023, significant changes came into force in the protection of employees who have appealed to the Labor Court against termination of an employment contract by notice or without notice.

Previously, in the Polish legal system, a dismissed employee who has decided to take legal action for reinstatement or for declaring the termination of an employment contract ineffective could also request that the employer be imposed an obligation to continue employment until the termination became final. However, approval of such a request by the court has so far been optional, and the courts ruled in this regard having considered the entirety of the case. Under current provisions, pursuant to Article 4772 §2 of the Code of Civil Procedure, the court, at the request of the employee, imposes in the judgment an obligation on the employer to continue employing the employee until the proceedings become final. The above means that if an employee files an appropriate motion during the proceedings, the labour court will be bound by it, and thus will obligatorily impose on the employer an obligation to employ the dismissed employee until a final judgment in his case.

Some employees under enhanced protection

Employees under enhanced protection include union activists, employees in pre-retirement protection, pregnant employees, employees taking parental leave, persons who are social labour inspectors, local government councillors, employees under compulsory military service or territorial military service, members of the workers' council and members of the workers' council of a state-owned enterprise.

These employees, by the amendment of the Code of Civil Procedure and, more specifically, by the new Article 755 5 , gained the possibility of so-named injunction. It consists in the fact that the court, at the request of the entitled person at any stage of the proceedings, will grant injunction by ordering the continued employment of the person by the employer until the final resolution of the proceedings. The basis for granting injunction is merely the substantiation of the existence of a claim. The court may refuse to grant injunction only if the claim is manifestly unfounded.

The new regulations can be applied to proceedings already pending and those that have not been concluded before the effective date of the new regulations. This means that employees who are currently in a dispute with their employer and who have filed a request to impose on the employer an obligation to continue employing the employee until the final resolution of the proceedings, or who will file such a motion before the court's decision, will certainly be reinstated by the court for the period until the final decision ending the proceedings becomes final in law.

In practice, an employee who is subject to enhanced protection of the permanence of the employment relationship will now be allowed to return to work more quickly, that is at the stage of resolving of the case by the labour court. Other employees will be reinstated as soon as the labour court issues a judgment - even if the employer appeals the ruling.

Can the employer defend against injunction?

Yes, the new provisions of the Code of Civil Procedure grant the employer the right to file an appeal against the injunction order. When the injunction order becomes final, the employer may apply for its revocation only if it proves to the court that, after granting of the injunction order, the following requirements were met:

- the employee's gross misconduct at work;

- a crime by the employee that makes it impossible to continue to employ them in their position, if the crime is obvious or has been established by a final judgment;

- culpable loss by the employee of a licence necessary to perform the work in the given position.

In conclusion, the above changes are certainly beneficial for the employees. Employers, on the other hand, will have to analyse notices of termination more and more carefully, because the compulsory employment of a dismissed employee will generate additional costs. It should also be mentioned that by extending the protection under the employment relationship only at the expense of employers may produce greater avoidance of hiring employees under a contract of employment and negatively affect the labour market in Poland.