According to the judgment of the Supreme Court of 13 March 2024 (II PSKP 52/23) in the light of Article 183a § 3 of the Labour Code, direct discrimination exists when an employee for one or more reasons specified in the Labour Code was, is or could be treated less favourably than other employees in a comparable situation. Therefore, the allegation that discrimination occurs only if it is „systemic in nature” should be considered unfounded.
Equality of treatment occurs when all legal entities characterised by a given essential characteristic are treated equally according to the same measure (cf. judgment of the Constitutional Tribunal of 28 November 1995, K 17/95, OTK 1995, No. 3, item 18). Consequently, this means the acceptance of different treatment of different entities, the so-called differentiation of labour law (cf. the judgment of the Supreme Court of 5 October 2007, II PK 14/07, OSNP 2008 no. 21-22, item 311; for more information, see the commentary to Article 112, where the principle of equal treatment is expressed). Discrimination is worse treatment in relation to the general public – an individual or a group of people, and the element that distinguishes discrimination from equal treatment is differentiation on the basis of a specific criterion. The issue of similarity of differentiated entities is not of great importance in discrimination. As a rule, the discriminatory criteria are age, gender, sexual orientation, religion, nationality or political beliefs. The application of such differentiation criteria is a particularly reprehensible and socially harmful manifestation of unequal treatment (cf. Supreme Court judgments of 18 September 2008, II PK 27/08, OSNP 2010 No. 3-4, item 41; of 14 May 2014, II PK 208/13, Legalis).
Discrimination, as opposed to „ordinary” unequal treatment, means worse treatment of an employee because of some of his or her characteristics or characteristics. The relationship between the principles of equal treatment and the principles of non-discrimination consists only in the fact that if employees, despite performing the same duties, are treated unequally on the grounds listed in Article 183a of the Labour Code, then we are dealing with discrimination. If, on the other hand, inequality is not dictated by prohibited criteria, one can only speak of a violation of the principle of equal rights (equal treatment) of employees, as provided for in Article 112 of the Labour Code (cf. the judgment of the Court of Appeal in Poznań of 18 April 2013, III APa 21/12, Legalis).
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