This issue should be considered in light of the Labour Code (Article 41) and the Act of 2 March 2020 on specific solutions to prevent, counteract and combat COVID-19, other infectious diseases and crisis situations caused by them (“Anti-Crisis Shield”) as adopted on 31 March 2020 in connection with the Act of 11 October 2013 on special solutions to protect jobs.

First, as a protective provision, Article 41 of the Labour Code, introduces a temporary ban on termination of an employment contract during the employee’s leave or other excused absence from work. Therefore, it is crucial to determine whether the notion of “other excused absence from work” includes an actual absence of the employee caused by downtime that is not the fault of the employee. This term refers mainly to cases, specified in the Labour and Social Affairs Minister’s regulation of 15 May 1996, on how to justify absence from work and how to grant permission to employees for absence from work. These include the employee’s illness, quarantine, caring for a sick child, compulsory appearance before an administrative body or court, but also absences caused by business trips during night hours in conditions preventing night-time rest. However, the absence of an employee who is taking time off due to working time norms and rest-time compensation on an ordinary working day, does not constitute an other excused absence from work, as referred to in Article 41 of the Labour Code, even if this continues uninterruptedly for a whole day (Supreme Court judgment of 12 July 2012, II PK 301/11). This means that Article 41 of the Labour Code does not apply absolutely in every case of an employee’s absence that is not unjustified. The provision’s protective function refers to an inability to perform work for reasons not attributable to the employee.

An employee's readiness to work during downtime may be deemed equivalent to performing work when that work cannot be carried out for reasons related to the employer. For this reason, such a situation is a condition for employees retaining their right to remuneration. An employee’s absence during downtime should be reflected in the work time register. It will not be shown as “other excused absence”, but as a separate category that clearly indicates the downtime nature of the absence (denoted by the letter “P”, for example).

Therefore, for this reason too, it must be made clear that the Labour Code does not provide protection during downtime. This means that if employees are not working, and their absence is due to downtime, general regulations allow the termination of their employment contracts, as well as just the working terms and conditions and the associated pay. 

However, one must note that other regulations outside the Labour Code may affect an employer’s actions. Article 15g sec. 17 of the Anti-Crisis Shield Act refers to the Act’s provisions on special protection of jobs, which in Article 13 prohibits the termination of employment.

This prohibition applies only to employers that have benefited from subsidies, stated in those provisions, towards their employees’ pay, and not to all employers affected by economic downtime. In such cases, a contract may not be terminated for reasons not attributable to the employees. This mainly applies to all necessary reductions and liquidations of positions that are associated with the financial situation of the employer. There are no restrictions on terminating contracts for reasons attributable to the employee (e.g. poor performance, ineffectiveness, etc.), or on terminating contracts under other procedures (e.g. disciplinary grounds).

If an employer violates this prohibition, it will have to face, on the one hand, the need to return the aid it has received, and on the other, the risk of litigation from employees. This prohibition constitutes a category of “provisions on termination of employment” referred to in Article 45 § 1 of the Labour Code. Their violation may result in a reinstatement to work, or an award of damages to the employee.

It is, of course, important to also remember the binding restrictions on termination of contract that arise from special regulations (e.g. pregnancy, pre-retirement protection).

Izabela Dziubak-Napiórkowska, Attorney-at-law