Dr Paweł Łuczak from the Faculty of Management of the University of Lodz comments on the topic.
From 26 April 2023, an employee working for at least 6 months will have the right to apply for more predictable and safe working conditions, including changing the type of work or, in the case of part-time employees, for full-time employment. Also, an employee employed under a fixed-term employment contract will be able to apply for an open-ended employment contract. If possible, their employer should consider the employee's request positively, and if this is not possible, justify the refusal.
An employer will be obliged to respond in paper or electronic form to the employee's request not later than within 1 month from the date of its receipt, and if the request is turned down, inform the employee about the reason for the refusal. The existing normal dialogue in this regard between the parties to the employment relationship – an employer and an employee – will be replaced by a formal exchange of letters. Such an approach is in contradiction with what has been fought for years – excessive bureaucratisation. Considering the fact that the right to apply for more predictable and safe working conditions will be granted to every employee working for a given employer for at least 6 months, employers can expect a number of new applications today. It should also be remembered that an employee will be able to apply for such a change every year.
An employer will have to inform employees about vacancies and promotion opportunities.
The obligation to inform all employees about vacancies and promotion procedures is another order imposed on an employer in accordance with the changes to the Labour Code, which will come into force on 26 April 2023. As of that date, an employer will have to inform employees about planned promotions, thus giving them the opportunity to freely apply as part of internal recruitment. Regardless of the original intention of the legislator, the regulation will result in forcing an employer to inform employees about setting up a new position in the organisation or the development of a specific department. Although internal recruitment, i.e. obtaining a candidate for a job using internal recruitment, has a whole range of advantages that employers are undoubtedly aware of, in some situations it is justified and purposeful to focus only on external recruitment.
The new law raises legitimate concerns of employers, for whom it will be often necessary to disclose business decisions and development plans in advance. Attention should also be paid to the increased risk of disclosing confidential information regarding developments in new markets or plans to introduce new products to competitors. Until now, this information was reserved for a small group of people working on a given project, now, due to the need to inform the entire organisation about ongoing recruitments, the risk of its disclosure significantly increases.
The future of today's popular 'hidden recruitment', during which the employer's details are not disclosed in the initial stages, may also be puzzling. After the change in the legislation, it will be much easier to identify the actual employer behind the offer, which is a kind of contradiction of the ideas behind such activities.
An employer will have to justify termination of fixed-term contract
Indicating the reason for termination, a hitherto obligation assigned only to open-ended employment contracts, will be extended to fixed-term employment contracts as well. This change is perhaps of greatest concern to employers. For years, one of the main reasons why open-ended employment contracts were considered particularly safe for employees was precisely the need for an employer to indicate the reason for their termination. This obligation caused sleepless nights for many employers and gave an employee the right to contest the reason, which often ended in the employer losing a court dispute and having to reinstate the employee or pay compensation.
The amendment to the Labour Code, which comes into force on 26 April 2023, will oblige employers to indicate the reason for the termination of a fixed-term contract. In practice, at the end of the probationary period, an employer will bind themselves to an employee permanently, and resignation from further cooperation will require indicating a specific reason, which cannot be a mere "change of mind" by the employer.
New legislation may change the approach of employers
Although Polish law guarantees an entrepreneur the freedom to run a business, within which one of the fundamental rights of an employer is the free choice of the employees with whom they want to cooperate – the amended provisions of the Labour Code seem to contradict this. The new provisions, in their, by the way, very correct assumption, were intended to give employees a greater sense of security and stability of employment. However, there is a risk that, in practice, they will encourage many employers to establish cooperation with new persons under non-employee forms of employment, in particular b2b contracts. They will enable an 'employer' to avoid having to justify the termination of a contract or the refusal to change its terms and conditions to more stable ones, or even to publicly inform the whole organisation about a vacancy or promotion plans.
HR and payroll departments in organisations will also get a number of new tasks consisting in constructing explanations for terminating a contract and refusing to guarantee more stable employment conditions. In many organisations, the use of disciplinary penalties by employers will gain popularity, the collection of which in employee's personal files will provide the basis for justifying the termination of the contract.
Author: Dr Paweł Łuczak, Department of Human Resources Management, University of Lodz
Edit: Faculty of Management, University of Lodz