Pursuant to Art. 113 of the Labor Code, any discrimination in employment, direct or indirect, in particular due to 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 – is unacceptable. On this basis, it is possible to define discrimination as unlawful deprivation or limitation of rights resulting from the employment relationship or unequal treatment of employees for the reasons listed in Art. 113 of the Code. Importantly, as indicated by the Supreme Court in the judgment of May 7, 2019 (file no. II PK 31/18), when discriminating against it, the „aspect of the fault, will or intentions of the employer” does not matter, which is „indifferent to the employer’s liability. . Only the existing state of affairs is relevant, which is referred to as discrimination „. This means that an employer does not have to „want” to discriminate in order to be liable for discrimination – he will be liable whenever discrimination is proven.
One should also pay attention to the code-based distinction between direct and indirect discrimination, more broadly regulated in Art. 183a of the Code. Direct discrimination, pursuant to Art. 183a §3, there is a situation in which the employee was for one or more reasons specified in § 1 of the above-mentioned provision (it is an open catalog, which includes, among others, gender, age, disability, race, religion or nationality), is or could be treated in a comparable situation less favorably than other employees. Most often, therefore, it is about treating a specific person worse – Jan Nowak due to the fact that she moves on a ball, or Anna Kowalska due to her Greek Catholic religion.
On the other hand, we deal with indirect discrimination in the case of seemingly neutral employment conditions, the effect of which, however, is unfavorable disproportions or a particularly unfavorable situation of treating all or a significant number of employees, unless these conditions are objectively justified (cf. Article 183a § 4). Indirect discrimination, due to its „hidden” nature, cannot be based on discrimination against a named person, but on the whole group of people – e.g. women (indirect discrimination based on sex), Hungarians (indirect discrimination based on nationality) or 60-year-olds ( indirect discrimination based on age).
What other than discrimination is unequal treatment, because, as noted by the Court of Appeal in Łódź in its judgment of 28 August 2020, no.
reference number act III APa 7/20), „although these two principles are closely related to each other, they undoubtedly constitute separate principles, the violation of which by the employer has different consequences”. This is a situation where two or more entities are treated differently. If the difference in treatment is objectively justified, it will be lawful. On the other hand, if there are no grounds for treating these two entities differently, i.e. if it is not objectively justified, we will be dealing with discrimination (cf. Art. 112). It follows that all discrimination is unequal treatment, and not all unequal treatment will be discrimination.
The difference between discrimination and unequal treatment is best illustrated by a specific example. For example, it may turn out that men and women will be treated differently in a specific case – but it will never be considered a justification for discrimination that is committed solely on the basis of sex. In its decision in case C-841/19 (JL v. Fondo de Garantía Salarial (Fogasa)), the Court of Justice of the EU ruled that the situation of people who work full-time and those who work part-time can be differentiated, to the detriment of the latter. This is possible even if it turns out that this less favorable treatment will primarily affect women. This is because the basis for the differentiation in this case is not the gender of employees, but the form of their employment. Compare, however, the judgment of the CJEU in case C-274/18 (Minoo Schuch-Ghannadan v Medizinische Universität Wien) adjudicating in a similar case, where the Court found that discrimination against persons employed full-time and part-time would be considered discrimination if it was established this rule adversely affects a significantly higher proportion of female workers than male workers, and if the said rule is not objectively justified by a legitimate aim or if the measures to achieve that aim are not appropriate and necessary.
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