The Labor Code provides for two principles regarding the prohibition of unequal and unfair treatment of employees.
One of them is the prohibition of discrimination in employment. This principle states that any discrimination in employment, direct or indirect, is inadmissible. In particular, this applies to discrimination based on sex, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, religion, sexual orientation, employment for a fixed or indefinite period, full-time or part-time employment . It is characteristic of discrimination to rely on any of the forbidden grounds.
Another principle resulting from the Labor Code is equal treatment of employees. This provision states that employees have equal rights to fulfill the same duties in the same way. This applies in particular to the equal treatment of men and women in employment.
These rules may seem similar and are closely related to each other, but they are separate rules, the violation of which by the employer has different consequences. In its judgment of 28 August 2020, III APa 7/20, the Court of Appeal in Łódź considered the differences between the two principles.
In the case at hand, the employee demanded that his salary be increased to the extent that other employees in the same position in the workplace received. This was argued by, among others approximation of working conditions, comparable professional qualifications and work requiring comparable responsibility and effort. However, the Court of Appeal in Łódź found that it does not constitute discrimination in employment under Art. 113 of the Labor Code, inequality not dictated by grounds deemed to be discriminatory, even if the employer may be attributed a breach of the principle of equal treatment of employees (Art. 112 of the Labor Code).
The categories of entities covered by the principle of equal treatment include employees characterized by a common feature that is relevant to the performance of the same duties. It is permissible to differentiate the rights of employees who perform different duties, or the same, but not the same. Moreover, the situation of the compared employees may be differentiated due to differences resulting from their personal predispositions.
On the other hand, discrimination is not all unequal treatment of a given person or group in comparison to others, but only such as a result of its difference from employees who are in the same factual or legal situation. The principle of non-discrimination therefore prohibits the worse treatment of certain persons for legally discriminatory grounds.
If the unequal treatment of employees is not dictated by prohibited criteria, only the principle of equal treatment of employees is violated, and not the prohibition of discrimination is breached.
This means that the provisions of the Labor Code relating to discrimination do not apply in the event of unequal treatment not caused by the cause recognized as the basis for discrimination. The judicature of the Supreme Court shows that discrimination is a qualified form of unequal treatment of employees and means inferior treatment of an employee unjustified by objective reasons due to being unrelated to the work performed, as well as personal and socially significant characteristics or properties.
On the other hand, inequality not dictated by grounds deemed to be discriminatory is not discrimination, even if the employer may be attributed a breach of the principle of equal treatment of employees. If an employee accuses the employer of violating the provisions on non-discrimination in employment, he should indicate the reason for the discrimination against him. In such disputes, the employee should present to the court the facts from which the presumption of discrimination (direct or indirect) can be derived, and then the burden of proof is transferred to the employer. From that moment on, it is the employer who has to prove that he was guided by objective reasons when differentiating the situation of employees.
Only the violation of the prohibition of discrimination gives rise to the employer’s liability for damages under Art. 183 d of the Labor Code. Violation of the principle of equal treatment of employees who fulfill the same duties in the same way is also sanctioned, but on a different legal basis (Art. 471 of the Civil Code).
english
