Labour and Social Security Journal 08/2024

A conceptual text focusing on the analysis of a rational structure of unemployment benefits designed to best serve the purpose of enabling the unemployed to find as quickly as possible a new job that matches their qualifications. The text concentrates on the discussion of theoretical solutions to the dual nature of unemployment benefits, namely their role in, on one hand, activisation, and on the other in income support. However, this discussion of the problem does not refer to the conditions concerning the practical administration of the benefit system (which is a separate issue), as these are generally the result of many years of overlapping various ad hoc conditions and compromises.

The amendment to the Code of Civil Procedure, introduced by the Act amending the Act on Bridge Pensions and certain other acts, has introduced a real revolution in the protection of certain groups of employees against termination of employment. Although the legislator's initial intention was to grant additional protection primarily to trade union activists and other members of employee representatives, ultimately, far-reaching guarantees of the durability of the employment relationship in the form of ordering the employer to continue employing the dismissed employee until the final conclusion of the proceedings were extended to all particularly protected employees. The analysis of the content of art. 755⁵ of the Code of Civil Procedure clearly shows that the court was basically given no discretion as to whether to grant this type of security. The basis for granting it is only if the entitled person (employee) substantiates the existence of the claim; security may be refused only if the claim is clearly groundless. Therefore, if it is granted, it will provide temporary satisfaction of the employee's claim seeking recognition of the notice of termination as ineffective or reinstatement to work, even at an early stage of the proceedings. The structure of the analyzed provision indicates that the legislator did not consider the practical aspects of applying the new institution of security, did not take into account the specificity of employment relations, the complexity of the facts and often assessed circumstances underlying the termination of the employment relationship by the employer and the employee, as well as the economic and organizational effects that it may cause, with a given employer.

Special protection of the continuity of an employment relationship established on the basis of an appointment raises interpretation doubts in practice, due to, among other things, the instability (impermanence) of the legal bond created by it, which is characteristic of this act. Particularly controversial is the application of the provisions of Art. 72 § 2 and 3 of the Labor Code, which provides protection against dismissal for pregnant women and employees of pre-retirement age, which mainly concerns two issues. Firstly, the way of understanding the phrase "other work corresponding to the employee's professional qualifications" occurring under the said regulations. This concerns in particular the criteria in the light of which one should assess whether the "other" job offered by the employer is "suitable" for employees covered by special protection against dismissal. Secondly, it is necessary to determine what legal consequences for the parties to the employment relationship result from the employer offering work that is "inappropriate" from the point of view of the "professional qualifications" of persons particularly protected by Art. 72 § 2 and 3 of the Labor Code. Resolving the above issues is of the greatest importance for the practice of economic transactions, which is why the main part of this article is devoted to them. In this respect, the author came to the conclusion that the job offered to the dismissed employee does not have to be "generally identical" or "significantly similar" to the one he performed before the dismissal, and the employer, when assessing its "suitability" for the employee, may not only but should also take into account the previous work history in the position from which the employee was dismissed. He also drew attention to the need, as a rule, to strictly adhere to the literal wording of the interpreted provisions in terms of the assessment criteria they establish (professional qualifications), also referring to the role of factors not explicitly included in them, such as the employee's health capabilities or the place where the work offered is to be performed. As for the legal consequences of the employer offering work that is "inappropriate" from the point of view of the "professional qualifications" of persons particularly protected by Art. 72 § 2 and 3 of the Labor Code expressed the belief that in such a case the employment relationship is definitively terminated if the employee do not accepts the offer made by the employer. Therefore, in the above-mentioned situation, the employee is not entitled to a claim for establishing the existence of an employment relationship, nor a claim for remuneration for the period of unemployment or downtime, but at most a claim for compensation.

Scope of application of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of law in the Union (OJ EU.L.2019.305.17), hereinafter referred to as: directive), significantly expands the group of entities that will be obliged to ensure functioning mechanisms for reporting identified irregularities. Following the Senate amendments, on 14 June 2024, the long-proceeded Act on the Protection of Whistleblowers was adopted (see Journal of Laws of 2024, item 928), the purpose of which is to protect persons reporting breaches of the law in the workplace. This Act, which is the implementation of the above-mentioned directive, is a significant step towards increasing transparency and compliance with the law in Polish public and private entities. The aim of the article is to present the concept and definition of a whistleblower, the systemic regulations contained in the directive, the protection of whistleblowers in the Polish legal system, and, above all, to attempt to answer the question of how an attorney at law should approach the obligation to report irregularities in their daily professional practice, taking into account the obligation to maintain professional secrecy. It should be pointed out that the essence of the profession of an attorney at law as a profession of public trust is associated with the obligation to maintain legal professional secrecy. It is one of the most important professional obligations of an attorney at law and the principles of ethics of this profession. The Code of Ethics for Attorneys at Law (hereinafter: KERP) clearly states that maintaining professional secrecy is the right and obligation of an attorney at law. The authors are of the opinion that the Act on the Protection of Whistleblowers should indicate all entities obliged to maintain professional secrecy, without evaluating them by type, including legal professional secrecy, or specify the numerus clausus of professions to which the provisions of the directive will not apply and which will not be entitled to report irregularities and take advantage of the protection provided by the measures provided for in the Act on the Protection of Whistleblowers.

The author discusses the issue of equality and transparency of remuneration from the perspective of the new Directive No. 970/2023/EU of the European Parliament and of the Council on strengthening the application of the principle of equal pay for women and men for equal work or work of equal value through pay transparency mechanisms and enforcement mechanisms. The directive imposes on Member States, among others: the obligation to develop and adopt uniform regulations regarding the rights of employees to request information from employers regarding the individual level of remuneration and the average level of remuneration, broken down by gender, in relation to categories of employees performing the same work or work of the same value, and imposes special obligations on employers reporting obligations. The implementation of the new directive in the national context will have a positive impact on the introduction of new standards in the field of pay policy, in particular in the field of counteracting pay discrimination and the functioning of fair pay in national law.

Reforming the Ukrainian economy, namely its transition from a planned, centralized one to a market one, which acts as a fully functioning system in the world, involves the creation of a number of effective mechanisms for the social protection of citizens. In this context, the most important task facing the state is the issue of society's attitude to the elderly. With the increase in the number of elderly people in the leading countries of the world, the need to update the state policy, which would guarantee meeting the needs of people of this age category, is becoming more and more important. This directly concerns the provision of social services, but this revision should also be aimed at the maximum inclusion of people of respectable age in economic and social activity. Among other things, it is necessary to ensure in order to harmonize society and the economy with demographic changes and build an accessible society for all ages ensure full integration and participation of elderly people in the life of society; promote equitable and sustainable economic development in response to the challenges of aging; adjust social protection systems taking into account demographic changes and the social and economic consequences caused by them; to provide labor markets with the ability to respond to the economic and social consequences of an aging population; promote continuous learning by adapting the education system to changing economic, social and demographic conditions.

The author refers to a recent Supreme Court judgment on the issue of working time. In the judgment in question, the Supreme Court dealt with a situation where, for organisational reasons on the part of the employer, an employee is transported within the workplace to the place of work. The issue in the case was whether the employee's working time was within the applicable working time norm.