Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Poland (Ratification: 1961)

The Committee notes the observations of the Independent and Self-Governing Trade Union “Solidarnosc” received on 30 August 2021 and the response of the Government.

Articles 1 and 2 of the Convention. Categories of workers excluded from the scope of the Labour Code. Workers in uniformed services. The Committee notes that in its observations, the Independent and Self-Governing Trade Union “Solidarnosc” stresses that the provisions of the legislation are not sufficient to effectively protect workers in uniformed services (i.e. officers from the armed forces, from the internal security agency, the foreign intelligence agency, the state fire service, the police, etc.) against discrimination in employment and occupation, as these groups of workers are not covered by the Labour Code. The organization also alleges that the provisions of the Equal Treatment Act, 2010 are insufficient to ensure the application of the Convention in practice and that complaints filed by officers often result in retaliatory actions.

In its response to the observations of the Independent and Self-Governing Trade Union “Solidarnosc”, the Government provides detailed information on the legal framework adopted to prevent undesirable behaviour in the uniformed services. The Government refers in particular to the amendments in 2021 of section 132(3)(11) of the Act on the police of 6 April 1990, section 135(2)(11) of the Act on the Border Guard of 12 October 1990, and section 209(1)(6a) of the Act of 8 December 2017 on the State Protection Service. In addition, pursuant to section 1(18)(a), section 2(3) and section 7(12(b)) of the Act of 14 August 2020 on special solutions concerning support of uniformed services supervised by the minister in charge of the interior, amending the Act on the Prison Services and certain other Acts, the list of cases of infringing official discipline has been extended to include an act consisting in a deliberate infringement of the personal rights of another officer, applicable even in the case of one-off actions with no requirement of persistence and endurance. The Committee also notes that other legislative measures in the area of preventing discrimination and “mobbing” (defined in article 943 of the Labour Code as “actions or behaviour concerning an employee or directed against an employee, consisting of persistent and long-term harassment or intimidation of an employee, causing the employee to be undervalued in terms of professional usefulness, causing or intended to cause humiliation or ridicule of the employee, isolating the employee or eliminating the employee from his/her team of co-workers”) include the provisions of the rules of professional ethics of police officers (Ordinance No. 805 of the Commander in Chief of the Police of 31 December 2003), border guards (Ordinance No. 11 of the Commander-in-Chief of the Border Guard of 20 March 2003) and state protection officers (Ordinance No. 9 of the Commander of the State Protection Service of 26 February 2018), according to which the officers referred in each Ordinance must act pursuant to and within the limits of the law and respect human rights, and are liable to disciplinary sanctions. Furthermore, in January 2021, the Police adopted the “Plan of educational and information activities in the field of protection of human rights and freedoms, implementation of the principle of equal treatment and compliance with the rules of professional ethics in the Police for the years 2021–2023”. The plan provides for, among other things, a continuation of educational and information activities aimed at making police officers and employees sensitive to the issue of equal treatment and professional ethics. In March 2021, the “Standards for the functioning in the Police of preventive and intervention procedures in the area of conflict resolution, preventing mobbing behaviour, discrimination and other undesirable behaviour in the place of service and work” were approved and form the basis for the procedures implemented in the Police units. Decision No. 178 of the Commander-in-Chief of the Police of 15 July 2021 also introduced, in the National Police Headquarters, an internal procedure for in the event of a conflict situation, mobbing behaviour, discrimination or other undesirable behaviour, which includes protection against retaliation.

As for soldiers, they are protected by both generally and specific applicable regulations, such as for example the Act of 11 September 2003 on military service of professional soldiers, the Act of 9 October 2009 on military discipline, and the General Regulations of the Armed Forces of the Republic of Poland, which prohibits mobbing and provides for sanctions in cases of unethical, immoral, or rude behaviours, and for violating the norms of social coexistence. In addition, the armed forces have a Coordinator for Equal Treatment and female soldiers are appointed at the Women’s Affairs Council. The Coordinator for Equal Treatment and the Women’s Affairs Council have developed a project aiming at strengthening the protection against mobbing and discrimination within the armed forces and that further legislative developments are currently under consideration. The Committee recalls that the protection afforded by the Convention applies to all categories of workers, including workers in uniformed services. The Committee asks the Government to indicate whether the legislation applicable to workers in uniformed services explicitly defines the concepts of discrimination and sexual harassment and enumerates specific protected grounds of discrimination. It also asks the Government to provide detailed information on the number of cases of discrimination detected or dealt with by the competent authorities within the different services, as well as the grounds of discrimination invoked, the outcome of the cases (sanction imposed and remedies granted) and the measures taken to ensure that complaints filed by officers do not result in retaliation.

Article 1. Indirect discrimination. The Committee had requested the Government to provide information on the manner in which the prohibition of indirect discrimination in employment and occupation provided for under section 3(2) of the Equal Treatment Act of 2010 and section 18 3a of the Labour Code is applied in practice, specifying how the Courts had interpreted the differences between the two legal definitions of such discrimination in order to ensure comprehensive protection against indirect discrimination in employment and occupation. In its report, the Government refers to two judgments of the Supreme Court on indirect discrimination under the relevant sections of the Labour Code. The first one of 28 February 2019 (I PK 50/18) concluded that the protection against discrimination under section 18 3a (4) of the Labour Code is extended to cases in which the employer introduces a certain criterion for differentiating between employees which, on the face of it is objective, but as a result of its application, all or a significant number of employees belonging to a particular group are in a particularly unfavourable situation or there are particularly unfavourable proportions in relation to other employees. In the second decision of 7 May 2019 (II PK 31/18), the Supreme Court concluded that the failure to take any action to equalize the level of remuneration may be evidence of discrimination. While taking note of this information, the Committee asks the Government to consider aligning the definitions of “indirect discrimination” in the Equal Treatment Act and the Labour Code to cover the effects of “indirect discrimination” on both a “person” and a group of persons, and to continue to provide information on the application in practice of the prohibition of indirect discrimination, including information on the court decisions issued on the application of section 3(2) of the Equal Treatment Act.

Article 1(1)(b). Additional ground of discrimination. Disability. In follow up to its request for information in this regard, the Committee takes note with interest of the adoption of the Strategy for Persons with Disabilities 2021-2030, by Resolution No. 27 of 16 February 2021, providing for a comprehensive and cross-sectoral approach to public policy to support persons with disabilities. It notes in particular that “work” is one of the priorities of the strategy that provides for actions aimed at increasing the possibility of employment in an open, inclusive and accessible working environment. The Committee further takes note of the launch of two projects in the context of the previous Operational Programme Knowledge Education Development for 2014-20 (OPKED 2014-2020): (1) “Active disabled – tools to support the independence of persons with disabilities”; and (2) “Inclusion of the excluded – active instruments to support people with disabilities on the labour market”. The Government further reports on several measures adopted to support the employers of workers with disabilities, such as aid programmes for training costs, and subsidies to supplement employees’ wages. The Government further provides detailed data showing notably that: (1) the labour force participation rate of the population with disabilities increased by 0.2 percentage points – from 17.3 per cent in 2018 to 17.5 per cent in 2020; (2) the employment rate increased by 0.5 percentage points – from 16.2 per cent in 2018 to 16.7 per cent in 2020; (3) the unemployment rate decreased by 1.8 percentage points – from 6.5 per cent in 2018 to 4.7 per cent in 2020. The Committee also takes note of the data disaggregated by degrees of disabilities, showing that: (1) the 2020 employment rate for people with significant degrees of disabilities was 9.6 per cent, compared to 33.9 per cent for workers with moderate degrees of disabilities and 44.3 per cent for workers with mild disabilities; and (2) the employment rates for workers with moderate and mild degrees of disabilities had increased since 2018 while the employment rate of workers with significant degrees of disabilities had decreased in the same period. Lastly, the Committee welcomes the detailed data provided on the number of complaints for discrimination based on disability filed with the national labour inspectorate, showing: (1) six cases reported between 2018 and 2020 for non-compliance with the prohibition of discrimination by employment agencies and other related entities; (2) three cases reported between 2018 and 2020 for discriminatory refusals to employ a candidate in a vacant place or a place of professional training; (3) 33 cases reported between 2018 and 2020 for discrimination in the recreation or termination of employment; (4) 38 cases reported between 2018 and 2020 for discrimination in determining pay or other terms or conditions of employment; (5) five cases reported between 2018 and 2020 for discrimination in promotion or other work-related benefits; and (6) two cases between 2018 and 2020 for discrimination in the participation in trainings to improve professional qualifications. Welcoming the comprehensive action undertaken by the Government, the Committee asks it to continue to provide information on: (i) any steps taken to promote the employment and vocational training of persons with disabilities, in particular information, including statistics disaggregated by sex, on the implementation of the Strategy for Persons with Disabilities 2021-2030 and the above projects, their results and impact on the recruitment of persons with disabilities on the open market and on the number of complaints for discrimination based on disability as well as on any obstacles encountered; and (ii) cases of discrimination based on disability in employment and occupation that have been addressed by the national labour inspectorate and the courts.

Enforcement. In follow up to its previous comment in this regard, the Committee takes note of the detailed information provided by the Government on the number of complaints addressed to the national labour inspectorate disaggregated by grounds of discrimination. It notes however that the data provided does not include information on the sanctions imposed nor the remedies granted. The Committee asks the Government to continue to provide information on the violations of the prohibition of discrimination in employment and occupation detected by the labour inspectors and other competent authorities and on the sanction imposed and the remedies granted.