Pursuant to Art. 18 (3a) of the Labor Code, employees should be treated equally as regards entering into and terminating the employment relationship, terms of employment, promotion and access to training in order to improve professional qualifications, in particular regardless of 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.
Equal treatment in employment means non-discrimination in any way, directly or indirectly, on the above grounds. Following the judgment of the Supreme Court of May 9, 2019 (file reference number III PK 50/18, OSNP 2020, No. 5, item 42), „under the concept of” the principle of equal treatment in employment „under Art. 18 (3d) k.p. one should understand both discrimination on the basis of the forbidden differentiating criterion (Article 18 (3a) of the Labor Code) and other, apart from discrimination, cases of unequal treatment in employment. (…) This principle should not be reduced to the prohibition of discrimination on the basis of the forbidden differentiation criterion, because this principle also covers other, apart from discrimination, cases of unlawful unequal treatment in employment „. Therefore, it is possible to break the principle of equal treatment in employment by treating an employee differently due to something other than, for example, gender, age, or full-time or part-time employment. In other words, the regulation does not indicate all the forbidden differentiation criteria.
What is the difference between discrimination and unequal treatment?
Discrimination is a qualified form of unequal treatment. Moreover, „the provisions of the Labor Code relating to discrimination do not apply in cases of unequal treatment not caused by the cause recognized as the basis for discrimination. Therefore, if an employee alleges a breach of the provisions relating to discrimination, then he should indicate the reason for which he was discriminated against, or at least the circumstances that make it possible to identify such a reason „(judgment of the Supreme Court of May 9, 2019, file ref. III PK 50 / 18, OSNP 2020, No. 5, item 42).
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