The Labor Code Act of June 26, 1974 indicates the prohibition of discrimination and equal treatment in employment as one of its flagship principles. Article 113 of the Code presents an open catalog of discrimination criteria, which include, in particular, gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, denomination, sexual orientation, employment for a definite or indefinite period, full-time or part-time employment. Article 183a of the Act clearly, through definitions, distinguishes and clarifies the concepts of direct and indirect discrimination.
These basic and fundamental code principles also apply to remote work. Any discrimination, whether direct or indirect, is unacceptable. This means, above all, that the selection of employees who will work remotely must be done in a clear and fair manner, on the same terms for all. Such a decision is to be based on objective and rational premises, e.g. the nature of the work. As an example, manual workers can be indicated here, whose remote work would be pointless and the employer’s refusal to perform it is not a sign of discrimination. An employee performing work in the workplace cannot be treated differently from an employee working remotely, unless it results from obvious differences in the performance of work (e.g. fruit Thursdays in the office). Each case should be treated and analyzed individually.
It is important to emphasize that the aforementioned Art. 183a of the Code modifies the distribution of the burden of proof provided for in Art. 6 of the Civil Code, from which it follows that the burden of proving a fact lies with oneself, which derives legal consequences from it. In the case of discrimination in employment, the employee is only required to present facts from which it can be presumed that it occurs, and the employer must prove that the employee is not discriminated against (E. Maniewska [in:] K. Jaśkowski, E. Maniewska, Commentary updated to the Code LEX/el 2022, Article 18(3(a)), Article 18(3(b)), Article 18(3(c)), Article 18(3(d)), Article 18(3(e))).
In conclusion, it is worth mentioning that on June 7, 2022, the Sejm received a government draft amending the Labor Code Act and some other acts (paper no. 2335). The legislative process is now in its final stages; the Senate made minor amendments to the bill. The amendment largely concerns the regulation of the institution of remote work – the legal order will include its definition, and the place of work will depend on the agreement between the employer and the employee.
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