Pillar I: The state’s duty to protect human rights
1. Employment and Occupation Equality [page 9]
Ensuring equal treatment with respect to, among other things, undertaking and pursuing an economic or professional activity is governed by the Act on the Implementation of Certain Regulations of the European Union Regarding Equal Treatment. This law implemented the following European Union directives:
- Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood;
- Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;
- Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation;
- Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services;
- Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation;
- Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures to facilitate the exercise of the rights conferred on workers in the context of the free movement of workers (OJ L 128, 30.4.2014)
Right of Female Workers to Protection [page 15]
In view of the right of employed women to special protection under Article 8 of the European Social Charter, as well as the right of mothers to special protection during the period before and after childbirth under Article 10 of the International Covenant on Economic, Social and Cultural Rights, and under Article 177 LC, the employment relationship with a female employee during her pregnancy or while on maternity leave is subject to particular protection. During this time, an employer may not terminate an employment contract with or without notice unless there are reasons justifying termination without notice through the fault of the employee and an enterprise trade union representing the employee has consented to the termination of the employment contract.
During pregnancy or maternity leave, it is possible to terminate an employment contract solely in the event of the declaration of bankruptcy or the liquidation of the employer. In such cases, however, the employer is obliged to agree with the enterprise trade union representing the female employee on the date of the termination of their employment contract. If it is not possible to ensure other employment within that period of time, the female employee is entitled to the benefits specified in separate provisions on cash benefits from social security in the event of sickness or maternity.
The special protection of the employment relationship does not apply to female employees on a trial period not exceeding one month or to employees hired under an employment contract for a definite period of time concluded to replace an employee during a justified absence from work. These regulations also apply accordingly in the case of employees taking parental leave.
The Labour Code also contains a number of provisions governing specific rights of employees related to parenting, including the provisions on maternity, parental, paternity, and child-care leave, as well as provisions to facilitate the fulfilment of parental responsibilities in relation to child care and education, including regulations that make it possible to combine leave with part-time work or regulations on working time and the use of exemptions from work or breaks from work.
The particular protection of employment relationships during pregnancy and maternity leave is subject to modifications resulting from the provisions of the Act of 13 March 2003 on special rules regarding the termination of an employment relationship for reasons not related to employees (Journal of Laws of 2016, Item 1474). This law, which applies to employers with at least 20 employees, allows for termination of current employment and working conditions with notice, while still prohibiting termination, both in the case of collective redundancies and individual termination of an employment relationship during pregnancy and maternity leave. These regulations also apply accordingly in the case of employees taking parental leave.
According to the Act on the Implementation of Certain Regulations of the European Union Regarding Equal Treatment, in the case of a violation of the principle of equal treatment, laid down in that law, against an individual, including in connection with pregnancy, maternity leave, leave on terms of maternity leave, paternity leave, parental leave, or child-care leave, the person is entitled to compensation.
Pillar II: The corporate responsibility to respect human rights
9. Support in the Implementation the UN Guiding Principles by Companies [page 35]
The obligation to treat all employees equally regardless of their sex, i.e., the legal prohibition of discrimination on grounds of sex is one of the fundamental human rights under the applicable law. Equal treatment is based on the principle of equal pay for equal work or work of equal value, equality in decision-making processes, and equal access to training and promotion. The key areas in this respect include:
- Combating discrimination in the workplace (including on grounds of sex);
- Equal access for men and women to promotions and training;
- Equal remuneration for equal work or work of equal value;
- Increasing the participation of women in corporate decision-making bodies;
- Diversity management, including employee recruitment and selection, talent management and payroll policies, also in the sphere of an enterprise’s organisational culture;
- Providing employees with instruments and mechanisms to enable work-life balance.
Measures planned by the government to support the implementation of the UN Guiding Principles in these areas focus on working with business representatives, representatives of social partners, and non-governmental organizations dealing with the protection and pursuit of equal opportunities, e.g., through:
- Supporting initiatives to improve compliance with human rights standards, including initiatives to strengthen gender equality and diversity in the workplace;
- Promoting available solutions and developing, in collaboration with business and social partners, new tools and methods to promote awareness of human rights and equal treatment in the workplace;
- Supporting initiatives to promote available solutions and developing, in collaboration with business representatives and social partners, new tools and methods to promote awareness in the area of implementation of equal-treatment policies at enterprises;
- Promoting knowledge about the application of compensatory measures in the workplace, or promoting equal opportunities for people belonging to disadvantaged groups;
- Measures promoting the benefits of diversity policy and equal opportunities, e.g., balanced participation of women and men in decision-making bodies (promotional and information campaigns, projects co-financed from EU funds, support for initiatives undertaken by entrepreneurs);
- Promoting good practices in the area of equalisation opportunities used by enterprises, e.g., in employee recruitment and selection, talent management, protection against discrimination, management of the remuneration system, etc.;
- Supporting initiatives to build a broad coalition for creating these measures should involve a wide range of actors, both state institutions and private companies, NGOs, academia, the media, and social partners;
Supporting the development of research and analysis of social inequalities, which may serve as the basis for any possible remedial actions.
Pillar III: Access to remedies
Tasks of the National Labour Inspectorate in the Field of Combating Human Trafficking, and, in particular, Forced Labour [page 48]
As part of inspections concerning the legality of employment, labour inspectors examine issues related to respecting the principle of equal treatment and non-discrimination in access to employment. These activities are aimed at disclosing offences with regard to a refusal to employ a candidate for a vacant position or place of vocational training on the basis of their gender, age, disability, race, religion, nationality, political beliefs, ethnic origin, religious denomination, or sexual orientation. Most often, they involve the examination of job advertisements in which employers post illegal criteria for people who apply for employment, where the nature of the work does not justify their use (e.g., relating to gender or age).
The Polish NAP refers to women’s rights with regards to Regulations on European Funds [page 19]: “Article 7 of Regulation (EU) No 1303/20013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on five EU funds5 obliges all Member States to take appropriate steps to prevent any form of discrimination, including based on disability.6
That is why, in 2015, the Ministry of Infrastructure and Development developed the Guidelines for the implementation of the principle of equal opportunities and non-discrimination, including accessibility for people with disabilities and the principle of equal opportunities for women and men within EU funds for 2014-2020.
The above-mentioned Guidelines aim to ensure the compatibility of operational programmes (OPs) with the principle of equal opportunities and non-discrimination, including accessibility, for people with disabilities and the principle of equal opportunities for women and men, as well as to ensure a coherent approach in this respect under the European Social Fund (ESF), the European Regional Development Fund (ERDF), and the Cohesion Fund (CF).
The Guidelines are addressed to all institutions participating in the implementation of operational programmes co-financed by the ESF, the ERDF and the CF, in particular managing authorities (MAs), intermediate bodies (IPs) and implementing authorities (IAs) must ensure that the competent decision-making body or party to a project co-financing agreement under an OP will commit the beneficiary in a decision or project co-financing agreement to apply the current Guiding Principles.
The provisions adopted in these Guiding Principles are also an expression of the inclusion of the provisions of the United Nations Convention on the Rights of Persons with Disabilities, ratified by Poland in 2012, within the framework of structural funds.
According to the Guiding Principles, the managing authorities in operating programmes develop criteria for the evaluation of applications for co-financing allocation in such a way that co-financing (also projects implemented by enterprises) is offered to projects that have a positive or neutral impact on the principle of equal opportunities and non-discrimination, including accessibility for people with disabilities, and the principle of equal opportunities for women and men. The creation of administrative capacity to implement equal opportunities and non-discrimination policies, including accessibility for people with disabilities and equal opportunities for women and men in relation to the European Structural and Investment Funds (EFSI) was regulated in the Action Plan for Equality and Non-discrimination 2014-2020 (22 April 2015).