CMS Expert Guide on discrimination in the workplace in Poland

1. What are the main laws on discrimination in the workplace in your jurisdiction and what type of conduct does it cover?

The main law on discrimination in the workplace in Poland is the Labour Code. It prohibits direct and indirect discrimination, unequal treatment, harassment and sexual harassment in the workplace. These rules apply only to employees. But there is also a separate act on equal treatment that applies to freelancers and contractors. This act also prohibits direct and indirect discrimination, unequal treatment, harassment and sexual harassment at the workplace.  

2. Which characteristics are protected by these laws (is sexual orientation a protected characteristic?), and what type of employment relationships are covered – employee, worker, platform worker?

The law explicitly protects the following characteristics: sex, age, disability, race, religion, nationality, political views, trade union membership, ethnic origin, religious convictions, sexual orientation, employment for a definite or an indefinite period or employment on a full-time or part-time basis. But the catalogue of protective characteristics is open, and case-law may also protect other characteristics not listed in the catalogue above.

3. What remedies are available to an individual if they are subject to discrimination in the workplace, and what level of compensation might be awarded?

The remedies vary for employees and freelancers/contractors. 

An employee affected by a discriminatory practice has two options, which the individual might use in tandem. First, the employee may terminate his/her employment agreement without notice, invoking the employer’s breach of the equal treatment principle. Second, the employee may claim compensation in an amount not lower than the national minimum wage (in 2022, approximately EUR 630). There is no cap on the maximum amount, but courts are quite unlikely to award extremely high compensation.

A freelancer (or contractor) has only one option. The individual can claim compensation. The law does not provide for any cap on it.

Separately, the employer (namely, management board members or HR officers) that persistently violates equal treatment rules may face a criminal penalty. The Polish Criminal Code provides that malicious and persistent violation of employee rights is subject to a prison sentence of up to two years.

4. What steps such as policies, training etc (if any) are employers required to put in place to prevent discrimination in the workplace?

The employer has a general obligation to prevent discrimination and mobbing (i.e. bullying). While Polish law does not specify exactly how the employer should do this, the general understanding is that the employer must: put in place anti-discrimination polices, provide training to staff, ensure that the hiring process and internal procedures (e.g. training, promotion, workplace regulations) are free of any discriminatory elements, investigate incidents, etc. Apart from that, the employer has an express obligation to make the text of the provisions on equal treatment in employment available to employees in the form of written information at the workplace.

D&I Policy is not a legal requirement and is not common practice among Polish companies. Nevertheless, D&I Policies are getting more attention because foreign parent companies induce their local branches in Poland to adopt such policies. Moreover, some companies (currently large companies that meet the requirements on the number of persons employed and revenues, but in the future also smaller entities) must report on D&I issues in ESG nonfinancial reports, which results in the increasing interest of Polish companies in this topic. But the companies may also report that they do not have a D&I Policy.

6. Are there any risks in not having a local D&I policy? Any reputational risks and ESG consequences?

Adopting a D&I Policy is not yet common practice in Poland. Mainly large international companies adopt such policies. Therefore, a company without a D&I Policy does not bear great reputational risks at this stage. But some companies (i.e. large companies that meet the requirements on the number of persons employed and revenues, but in the future also smaller entities) are required to report their D&I activities as part of ESG non-financial reporting. Therefore, companies under ESG must pay attention to their supply chains. As a consequence, the absence of a D&I Policy and D&I reporting could result in commercial consequences, such as losing a contract.

7. Are employers required to report on pay transparency or gender/ethnic/disability pay gaps?

Banks must report the gender pay gap to the Financial Supervision Authority, but there are no instructions on such reporting. Also, listed companies are expected to report on the pay gap, but in this case it is not a legal requirement but a guideline from the Warsaw Stock Exchange. However, some companies are under the ESG reporting obligation (currently large companies meeting the requirements on the number of persons employed and revenues, but in the future also smaller entities) and such companies are usually interested in reporting on pay transparency and the pay gap. Otherwise, employers generally are not legally obliged to report on pay transparency or the gender/ethnic/disability pay gap.

8. Are there any data protection rules that affect the processing and retention of diversity data, and what do they say?

Although we have no explicit rules on handling diversity-related data, most of it (e.g. social sex, ethnic identity, sexual orientation or disability) falls into a GDPR category of sensitive data. This means that generally the company cannot process this data, unless: 

  • the employee (or the candidate) shares this data on his/her own initiative (e.g. in the form of a separate declaration). The company cannot request this data;
  • the employee (or the candidate) explicitly consents to the processing of his/her sensitive data. Legally the consent does not have to be in writing, but it is good to have it for evidentiary purposes;
  • only a person holding a written authorisation can process this data. This person must keep this data strictly confidential.

Diversity-related data is usually sensitive, so the company can retain it only for a period as short as objectively required. The company must delete it more quickly if the employee (or the candidate) withdraws consent to the processing of this data. Moreover, the company must put in place higher security standards and measures applicable to storing this data. (This means relevant security measures need to be implemented to process such data).

9. Are there any quotas at board level or below, and if so what do they relate to?

Polish law does not provide for any legal quotas at this stage. But relevant institutions or watchdogs might publish non-binding guidelines in this respect that companies follow for reputational reasons. For example, the Warsaw Stock Exchange issued guidelines specifying that among the board members of management and supervisory boards of listed companies at least 30% should be persons of each gender. 

10. Are there any corporate governance rules that relate to D&I, and what do they say?

The Warsaw Stock Exchange issued guidelines for listed companies on reporting the gender pay gap and on implementation of a D&I Policy. Such a policy should include provisions on the goals and criteria of diversity, in areas such as gender, field of study, specialist knowledge, age and professional experience, as well as indicate the date and method of monitoring and achieving these goals. Similar guidelines have been issued by the European Banking Authority and were communicated directly to banks.