Employees have equal rights due to the identical fulfillment of the same duties. This applies in particular to the requirement of equal treatment of men and women in employment. This rule stems directly from the Labor Code.

The principle of equal treatment in employment

One of the basic principles of employee management by the employer is the principle of equal treatment. It means that employees must have equal rights for performing the same duties. According to the principle of equal treatment, employees should be treated equally in terms of:

• establishing an employment relationship
• conditions of employment
• promotion
• access to training to improve professional qualifications
• termination of the employment relationship.

The list of reasons for which an employee’s situation cannot be differentiated is open. The Labor Code mentions examples such as:

• gender
• age
• disability
• race
• religion
• nationality
• political beliefs
• trade union membership
• ethnic origin
• faith
• sexual orientation
• employment for a definite or indefinite period
• full-time or part-time employment.

The following is considered a violation of the principle of equal treatment in employment by an employer differentiating an employee’s situation, for example through:

• refusal to establish an employment relationship;
• omission when selecting for participation in training to improve professional qualifications;
• unfavorable shaping of remuneration for work or other employment conditions, or omission in promotion or granting of other work-related benefits;
• termination of the employment relationship;

unless the employer proves that they were guided by objective reasons.

The difference between the principle of equal treatment and discrimination against an employee is that discrimination is one of the possible manifestations of unequal treatment and consists of unequal treatment based on a discriminatory criterion. However, unequal treatment is not always linked to a specific discriminatory criterion and for this reason will not always mean discrimination.

The consequences of violating the principle of equal treatment and breaking the prohibition of discrimination are different. In the first case, the employer’s liability for damages may be justified on the general principles of contractual liability. In the case of discrimination, the provisions of the Labor Code provide for compensation in an amount not lower than the minimum wage for work. In the case of contractual liability, there is no established lower limit for compensation.

In both cases, the compensation has no upper limit. The court will decide on the amount of compensation to be awarded to the employee, taking into account the conduct of the employer or its employee and the degree of violation of the prohibition of discrimination. Guidelines to the EU directive on equal treatment in employment and occupation indicate that sanctions imposed on the employer must be effective, proportionate, and dissuasive.

When unequal treatment is permissible

Different treatment is permissible in certain cases if it is proportionate to achieving a legitimate aim of differentiating the employee’s situation. An employer may apply measures that differentiate an employee’s legal situation due to the protection of parenthood or disability.

It is also permissible to use the criterion of seniority when determining conditions for hiring and dismissing employees, rules for remuneration and promotion, and access to training to improve professional qualifications. Longer seniority may justify better working conditions for an employee who is loyal to the employer.

An employer may also refuse to employ a worker for one or more legally protected reasons if the type of work or the conditions of its performance make the reason or reasons mentioned in this provision a genuine and decisive occupational requirement imposed on the employee.

It is also not a violation of the principle of equal treatment to temporarily equalize the opportunities of all or a significant number of employees distinguished due to one or more legally protected reasons by reducing actual inequalities in favor of such employees. An example of such a group of employees may be people with disabilities.

The principle of equal treatment is not violated by limiting access to employment based on religion, faith, or worldview by churches and other religious associations, as well as organizations whose ethics are based on religion, faith, or worldview. However, access can be limited only in cases where the type or nature of the activities they perform makes religion, faith, or worldview a genuine and decisive occupational requirement imposed on the employee. This requirement must be proportionate to achieving a legitimate aim of differentiating this person’s situation. In this respect, the entities mentioned may require the employee to act in good faith and loyalty to the ethics on which they base their activities.

Right to equal remuneration

Employees have the right to equal remuneration for equal work or work of equal value.

Equal work is work that is the same in terms of type, qualifications necessary to perform it, conditions under which it is provided, as well as quantity and quality. The same type of work performed or the same position held does not determine equal remuneration, as the way employees perform their work may differ, for example, in terms of diligence, workload, timeliness.

Work of equal value is work that requires comparable professional qualifications from employees, confirmed by appropriate documents or practice and professional experience, as well as comparable responsibility and effort.

Remuneration includes all components of remuneration regardless of their name and nature, as well as other work-related benefits granted to employees in monetary or non-monetary form. Awards are therefore part of the remuneration in light of the provisions on the prohibition of discrimination, although it should be remembered that, unlike bonuses, they are discretionary.

Employer’s obligations and employee’s claims

According to the regulations, the basic obligation of the employer is to counteract discrimination in employment. The employer is also responsible for organizing work in the company in such a way that there is no unequal treatment of employees, harassment, or sexual harassment.

In order to avoid phenomena in companies that may be considered discriminatory practices, employers may:

• introduce anti-discrimination procedures that will in particular explain the basic concepts of unequal treatment, discrimination, harassment, and sexual harassment
• present possibilities for reporting these behaviors
• establish the employer’s procedure from the time of receiving the report
• determine the degree of confidentiality of actions and possible resolutions of the proceedings
• appoint a representative for counteracting discrimination, i.e., a person to whom employees or other persons who believe they have experienced discrimination or other undesirable behavior in the workplace can report
• introduce transparent rules for remunerating employees, within which they will enable employees to ask questions about the employer’s decisions regarding remuneration arrangements
• organize training for employees so that they can identify the phenomenon of discrimination
• organize training for managerial staff to enable them to prevent discrimination in their teams.

If any of the employees substantiates an allegation of discrimination, the employer will be obliged to prove that discrimination, harassment, or sexual harassment did not occur. The employee, on the other hand, will be able to demand compensation from the employer if they experience any of these behaviors in the company. According to the regulations, the compensation should not be lower than the minimum wage.

If an employee accuses the employer of violating the provisions on the prohibition of discrimination and demands the application of the provisions on equal treatment in employment, they should indicate the reason for which they were discriminated against and the circumstances proving unequal treatment for this reason. In disputes where the employee derives their claims from the fact that the prohibition of discrimination has been violated against them, they should present facts to the court that make direct or indirect discrimination probable, and then the burden of proof shifts to the employer that when differentiating the employees’ situation, they were guided by objective premises.

An employee’s use of rights related to discrimination, harassment, sexual harassment, or unequal treatment cannot cause any negative consequences for them. Above all, the employee cannot be dismissed for this reason. The same principle applies to an employee who provided support to an employee suing the employer, for example, testified in their favor during court proceedings.

In connection with the employer’s non-compliance with the principle of equal treatment and non-discrimination at work, qualified as a serious violation of the employer’s obligations, the employee may exercise the right to terminate the employment contract binding them with the employer immediately, i.e., without the need to observe the required notice period.

Information on equal treatment regulations

It is the employer’s obligation to make available to employees the provisions on equal treatment in employment in the form of written information disseminated on the premises of the workplace or to ensure that employees have access to these provisions in another way adopted in the company, for example by posting them on a bulletin board or making the content available on the Internet.

Discrimination

For discrimination to occur, the employer does not have to discriminate against all employees because of a given characteristic. Discrimination against an employee does not have to be a conscious and deliberate action by the perpetrator.

Direct discrimination occurs when an employee was, is, or could be treated less favorably than other employees in a comparable situation because of one or more reasons considered discriminatory criteria.

Indirect discrimination occurs when, as a result of a provision, criterion applied, or action taken, there are or could be unfavorable disproportions or a particularly unfavorable situation in terms of establishing and terminating the employment relationship, employment conditions, promotion, and access to training to improve professional qualifications for all or a significant number of employees belonging to a group distinguished due to one or more reasons specified as discriminatory.

Indirect discrimination does not occur when the employer’s provision, criterion, or action is objectively justified due to a legitimate aim to be achieved, and the means to achieve that aim are appropriate and necessary.

Harassment and sexual harassment – as a form of discrimination

Harassment means unwanted behavior whose purpose or effect is to violate the dignity of an employee and create an intimidating, hostile, degrading, humiliating, or offensive atmosphere for them. Harassment occurs when the cause of the unwanted behavior is one of the discriminatory criteria, in particular: gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, faith, sexual orientation, employment for a definite or indefinite period, full-time or part-time employment.

Sexual harassment – is a type of discrimination based on gender. For behavior to be classified as sexual harassment:

• it must be of a sexual nature or refer to the employee’s gender
• it must be unwanted

The purpose or effect of this action is to violate the dignity of the employee, in particular by creating an intimidating, hostile, degrading, humiliating, or offensive atmosphere for them.

Sexual harassment can take various forms (physical, verbal, or non-verbal). Examples of such behavior include:

• sexual blackmail
• inducing sexual acts by using one’s advantage
• obscene jokes or allusions
• presenting pornographic content, for example, drawings, videos.

A person experiencing harassment or sexual harassment should express opposition to the unwanted behavior.

Opposition can be:

• verbal and consist, for example, of directly addressing the perpetrator and clearly communicating the unwanted nature of their behavior
• non-verbal and consist of, among other things, avoiding contact with the perpetrator.

As a result of the expressed opposition, the employer will be able to respond to unwanted behaviors and counteract them. Opposition is primarily important for evidential reasons. This is confirmed by court jurisprudence, which indicates that it is the victim’s obligation to make it probable that:

• sexual harassment occurred
• they opposed this behavior.

Then it will be the employer’s obligation to prove (and not just to make it probable) that harassment did not occur. This is a unique procedural situation in which the person initiating the proceedings (the employee) does not have to prove their claims, but it is enough to make them probable. In practice, employees present their version of events in the lawsuit and during the hearing. However, it is the employer who must show that the employee’s allegations are untrue and present evidence to confirm this.