In recent years, numerous discussions on the limits of freedom of expression in the workplace have been a popular topic of discussion in public forums. There have also been high-profile legal disputes based on conflicts between the value systems promoted by employers and the personal beliefs of employees. Current events in the international arena, particularly the full-scale invasion of Ukraine by the Russian Federation and the operations of the Israeli armed forces in the Gaza Strip, have opened up another potential area of friction in the employment relationship. In this context, the question is whether an employee's opposition to military action can justify refusing to carry out work orders (for example, when dealing with clients from countries involved in military operations).

Conscience clause in employment relationships

According to Article 100 § 1 of the Labour Code, employees must perform their work conscientiously and diligently and to comply with their superiors' instructions that concern work, unless these instructions conflict with legal provisions or the terms of the employment contract.

Therefore, employees must comply with all directives from their employers (superiors), unless they are external to the applicable employment relationship (particularly if they concern the private sphere or are not substantively related to the type of work entrusted to them) or are inconsistent with the law (meaning any inconsistency, not only with regard to criminal law).

However, labour legislation does not provide a general basis for refusing to carry out a work order on the grounds that it conflicts with the employee's beliefs or values. Article 53(1) of the Polish Constitution, which grants everyone freedom of conscience and religion, also provides insufficient grounds for refusal.

The conscientious objection clause is legally reserved only for a narrow group of medical professionals, including doctors, dentists, nurses and midwives, and allows them to refrain from providing a healthcare service (Article 39 of the Act on the Profession of Doctor and Dentist of 5 December 1996 and Article 12(2) of the Act on the Profession of Nurse and Midwife of 15 July 2011). According to the legislation, an individual entitled to invoke the clause is obliged to make a written declaration to their supervisor, indicating the services they will not perform due to their convictions, if they are in an employment relationship with a medical institution.

Thus, the individual ethics of medical professionals constitute a legal category that they can invoke when the medical institution expects them to perform a certain procedure. If they refuse to comply with such an order, their objection will be deemed legitimate and the employer will not be able to take any action against them.

For all other employees, worldviews remain purely moral concepts irrelevant to the application of existing employer-employee legal norms (the only exception being when an employee's beliefs, expressed in the workplace, constitute a decisive factor in their unequal treatment by the employer – Article 18^3a § 1 of the Labour Code).

An employee’s refusal to carry out a work order due to their beliefs

A fundamental feature of the employment relationship is the subordination to the employer, who autonomously decides how to organise their activities and the means by which to achieve their objectives. In practice, this means that the employer decides which tasks a particular employee performs, which clients they serve and with which individuals of which nationality they collaborate in performing day-to-day tasks. In the context of business relations in the realm of international events, this means that any employer can establish business relations with counterparties from the Russian Federation (although trade is significantly hampered in this respect due to the sanctions in place), or from Israel (for which no restrictions apply), and  is also free to employ personnel from these countries.

The employer's business decisions and personnel selection are completely beyond the control of individual employees. Therefore, even if an employee has an unequivocal and open negative attitude towards cooperating with a counterparty from a country conducting military activities in Ukraine or Gaza (or with capital ties to that country), or towards a person from that country joining their team, they cannot use these convictions as grounds to refuse to comply with a business order issued by the employer. Such a refusal would have no basis in Article 100 § 1 of the Labour Code.

At the same time, it should be borne in mind that an employee may justifiably refuse to participate in activities organised by the employer that actively support one of the parties to the conflict in any way. Expecting employees to do so goes beyond the employer’s official authority over personnel (Supreme Court decision of 19 November 2024, I PSK 62/24).

The consequences of refusing to carry out an official order

Usually, noncompliance with an official order is grounds for termination under Article 52 § 1(1) of the Labour Code (for example, see the Supreme Court judgment of 12 June 1997, I PKN 211/97).

However, an employer accusing an employee of a serious breach of fundamental duties must be certain that there are firm grounds for such a decision, given the severity of the sanction in the form of termination of the employment relationship without notice. Furthermore, when assessing a refusal to carry out an official order, the specific circumstances of the event must be taken into account (Supreme Court judgment of 12 July 2023, II PSKP 48/22).

From an organisational point of view, the employer should therefore consider whether the 'nuclear option' of disciplinary termination is really necessary, and also take into account whether such an action would cause reputational damage. Particular caution should be exercised when an employee from a state involved in the conflict refuses to acknowledge a co-worker or serve a particular counterparty. If such an employee is dismissed on disciplinary grounds, they may argue in court that their refusal to comply with a work order was not a culpable act due to their particular situation, even though it was unlawful and breached their basic duties, endangering the employer's interests. Additionally, arguments about the contradiction of the employer's decision with the principles of social coexistence could feature in the appeal. Undoubtedly, a court dispute about the legitimacy of a disciplinary dismissal would be saturated with polemics of an axiological nature, and the court would ultimately have to decide whether the employee's commitment to their beliefs outweighs their obligation to the employer within the employment relationship.

The Labour Code provides far less severe legal instruments for disciplining employees who resist orders, particularly in the form of a disciplinary penalties (Article 108 § 1 of the Labour Code). Non-punitive methods can also be used, such as reassigning the employee to another team or ensuring that they do not come into contact with a particular client, provided that the employer can carry out such staff rotation or organisational changes. If this is not possible, and if the employee consistently refuses to comply with orders, the employment relationship should be terminated by mutual agreement. If the employee is not interested in this option, the employment contract should be terminated by ordinary notice. However, the employee could allege that the termination is incompatible with the principles of social coexistence.

Summary

Employees have a constitutionally guaranteed freedom of conscience that can be exercised in the workplace. However, invoking the conscientious objection clause is significantly limited – the employment relationship is based on the employee's subordination to work orders, which the employee may only refuse to carry out in exceptional cases. This does do not include refusing to come into contact with co-workers or counterparties from countries involved in military activities due to the employee's specific beliefs. The employer may consider such a refusal to be unjustified, in which case the employee may then face disciplinary consequences, up to and including immediate termination of employment. However, this option should be considered as a last resort due to the uncertainty of the judicial outcome if the employer's decision is challenged in court, as well as the potential reputational risk.

Michał Mieszkowski