The latest draft of Poland’s implementing bill, published on 4 May, contains a number of notable developments. We discuss the key points below.
Key developments
- Most significantly, the revised draft introduces an explicit requirement that employees be assessed using the same categories and sub-categories of work, meaning, for example, that managers or specialist roles such as software developers cannot be evaluated using distinct criteria. It appears the intention is that employers must also apply the same weightings for categories and sub-categories across all job positions, but this is not explicitly stated in the draft.Under the previous draft, employers raised that trade unions (if any) may block the process of adopting categories and sub-categories of assessment. The new draft resolves this by allowing the employer to proceed even without trade union consent (if any), though in such circumstances the employer is limited to the mandatory criteria under the Directive and may not supplement these with additional ones.
- The government has also confirmed that a transparent salary structure must include salary ranges, though other aspects of this requirement remain unclear.
- In relation to temporary workers, reporting obligations will fall on the user employer, including as regards handling individual salary requests.
- The revised draft bill also provides for a slight increase in fines and the definition of remuneration has also been revised, with benefits in kind or in cash made available to employees without conditions — as well as termination payments — expressly excluded. This approach may create discrepancies with the position in other EU Member States and is an area that employers with cross-border operations should keep under close review.
- The relevant reference period for individual salary requests has been clarified as the 12 months preceding the month in which the request is made — a point not addressed under the Directive and where divergent implementations are expected.
- Notably, the revised draft bill prohibits restricting an employee from disclosing their salary for any reason (a ban on secrecy clauses), rather than only for the purpose of enforcing equal treatment rights as provided under the initial draft bill and the Directive.
- Finally, under the revised draft bill, it is planned to provide a legal basis for excluding contractors from public tenders where they have an unexplained gender pay gap exceeding 5% in any category of workers. Companies with a larger pay gap that apply for public tenders should note that this HR matter may also impact their commercial operations. It cannot be excluded that state-owned or other larger corporations will adopt similar rules in their procurement procedures on a voluntary basis.
In terms of other developments, press commentaries from the Ministry of Labour suggest that it considers it lawful to differentiate salaries for jobs of equal value based on “market forces” criteria, and also that employers may adopt an additional category of assessment — “impact on the organisation” — when scoring job positions. However, those brief commentaries only scratch the surface of a larger controversy where we expect case law to develop across many EU countries, possibly with divergent conclusions.
This alert is intended for general information purposes only and does not constitute legal advice. Please contact us if you would like to discuss the implications for your organisation.
For further information, please contact:
Michal Olszewski, Partner, Bird & Bird
michal.olszewski@twobirds.com
