Discrimination

Drukuj

All employees should be treated equally when doing the same job. This principle is rooted in the Labour Code. This equal treatment includes factors like hiring, job conditions, and career advancement.

Why can’t you treat employees differently? There isn’t a complete list, but reasons include:

  • Gender, age, disability
  • Race, religion, nationality, political beliefs
  • Union membership, ethnicity, sexual orientation
  • Type of employment (full-time, part-time, temporary, permanent)

Examples of violating equal treatment:

  • Not hiring someone for the above reasons
  • Not offering them training opportunities
  • Paying them less or not giving work benefits for unjustified reasons
  • Unfairly firing them (unless the employer has a solid reason)

When it comes to legal consequences, breaking the equal treatment rules can lead to paying damages. If discrimination is proven, compensation must be at least the minimum wage. However, there’s no capped amount, and a court will determine the final compensation, taking into account the severity of the discriminatory act and behavior of the employer.

Certain exceptions do exist where different treatment is permissible. An employer may adopt measures to promote parenthood or to support disabled employees, or consider seniority with the company. Religious organizations can also prioritize hiring based on religion if it’s pertinent to the role.

The right to equal pay

Employees have the right to equal pay for equal work or work of equal value. What is equal work and work of equal value?

Equal work” is work of the same type, qualifications required to perform it, conditions in which it is performed, as well as quantity and quality.

The same type of work or the same position does not determine the same remuneration, since the way employees perform their work may differ, for example, in terms of diligence, workload, timeliness.

Work of equal value” is work that requires comparable professional qualifications, confirmed by relevant documents or practice and professional experience, as well as comparable responsibility and effort.

This means that an employer can pay differently to two department managers, one of whom has a permanent staff and the other manages a team in a way that causes people to leave frequently and there is a lot of turnover, but should not differentiate between the salaries of two assembly line workers.

Salary includes all components of remuneration, regardless of their name or nature, as well as other work-related benefits provided to employees in cash or in kind. Awards are therefore part of remuneration under the non-discrimination provisions, although it should be remembered that, unlike bonuses, they are discretionary.

What employers should do:

Employers have the responsibility to actively fight against discrimination and to ensure a workplace environment free from unfair treatment, harassment, or sexual harassment. To achieve that, they should:

  • Have clear rules about pay and allow employees to ask about them.
  • Train employees and managers to recognize and prevent discrimination.
  • Appoint someone to handle discrimination complaints.

Finally, employers are expected to provide information on equal treatment provisions to employees, whether in written form or electronically, and maintain a system that supports the principles of non-discrimination and equal treatment.

If an employee reports discrimination, the employer needs to prove that they didn’t discriminate.If you go to court to fight for discrimination compensation, you only need provide the court with facts that make direct or indirect discrimination likely, and then the employer must prove that he or she was guided by objective reasons when differentiating the position of employees.

The employer can’t fire you for reporting discrimination and filing the court case. Same applies to any collegue that supported you at the workplace. Experience of discrimination allows you to quit the job without notice period.

Direct and Indirect discrimination

Discrimination means treating someone unfairly based on certain characteristics. It can be direct (obvious) or indirect (hidden behind a rule or policy). Indirect discrimination is allowed if there’s a good reason and it’s necessary.

MobbingDiscrimination
Violation without regard to a legally protected characteristic.Violation due to a legally protected characteristic
Lack of protection at the stage of employee recruitmentProtection also at the stage of employee recruitment (e.g. a complaint can be filed with the PIP against a recruitment advertisement)
Prolonged and persistent actionsPossible one-off actions
The employee must prove that they were the victim of bullyingReversed burden of proof: The employee must make it plausible that unequal treatment based on a particular characteristic has occurred; in this case, the employer must prove that there has been no unequal treatment or that it has used objective criteria in differentiating between employees
The employee may claim compensation as well as damages in case of disruption of health (art. 94 3 § 3 5 of the Labour Code)The employee can claim compensation (this includes not only compensation for the property damage but also (or only) for the non-property damage of the employee.
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