Labour and Social Security Journal 09/2023

This article considers how to define artificial intelligence (AI) systems in employment law. The proposed definitions of AI put forward by the European Commission and the European Parliament in the draft AI ACT are too vague from a labour law perspective. The author hypothesises that research should focus on specific features of the AI system, such as the decisions of automated decision-making systems and their impact on employees' rights and obligations, rather than on a vague notion of AI. The use of appropriate research methods, in particular hermeneutic and axiological methods of legal research, is advisable in the conduct of an AI analysis on the basis of the science of labour law.

Reducing individuals' exposure to social risks is desirable from an individual and state perspective. A key factor determining the level of protection against the effects of social risks is the form of employment. The aim of this article is to indicate whether individuals with a lower level of protection in the social security system are characterised by lower trust in the Social Security, a more individualistic life attitude, or a lower level of knowledge about the pension system - and whether weaker protection is accompanied by compensatory measures. The answer to these questions is made possible by a statistical analysis based on individual data from the ZUS survey Knowledge and attitudes towards social security. In its light, those with the highest level of protection are also those with the highest level of knowledge about the mechanisms of the security system, while those with the highest or lowest level of protection are characterised by a slight dominance of communal over individualistic attitudes. Trust in ZUS is not statistically significantly different between groups with different levels of protection. Among compensation activities, voluntary saving is clearly more frequently recorded among those with low trust in ZUS, while the episode of working abroad was more frequent among those with above-average levels of knowledge. In selected subgroups, gaps in social security that could be compensated by public policy are revealed.

The purpose of Directive 2008/104/EC is to ensure the protection of temporary workers and to improve the quality of temporary work by guaranteeing temporary workers compliance with the principle of equal treatment by entrepreneurs. The factual basis of the dispute in case C-311/21 CM against TimePartner Personalmanagement GmbH was an action brought to the labour court by a temporary worker. The essence of the dispute was to determine: 1) how to define the concept of general protection of temporary workers contained in Article 5(3) of Directive 2008/104/EC and; 2) what is the function of the above term?

The author critically analyses Article 16(1e) of the Social Security Act. This provision, as an element of the so-called Polish Order, is intended as an instrument to counteract black employment. It consists in imposing the burden of financing the entire social insurance contributions on the payer in the event of the discovery of illegal employment or underestimation of the assessment basis for contributions. However, analysis of the provision leads to the conclusion that it does not apply to civil law contracts at all. It may also not apply to the situation of failure to register for social insurance if the formal and legal requirements for the conclusion of an employment contract have themselves been met. Thus, the provision may not fulfil its purpose: affected insured persons may continue to be afraid to report irregularities in this respect in order not to risk having to reimburse part of their social security contributions.

Amendments introduced by the Act of May 16, 2019 added four new provisions to the Code of Civil Procedure (Art. 477^1a, Art. 477^1b, 691¹⁰ and Art. 691¹¹ of the Code of Civil Procedure), thanks to which it is permissible for an employee to pursue a claim for obtaining an employment certificate or its correction both in civil process or non-litigious proceedings. These changes have not only placed the employee's claim in a clear, normative basis but also made legal protection more effective. The author discusses in detail the pursuit of a claim for obliging the employer to issue a work certificate in a civil lawsuit. It also introduces a new, previously unknown to the procedural law, issue of determining the right to receive a work certificate in non-litigious proceedings. In the article, she also assesses the legal nature of the judgment, which, after its validation, replaces the employment certificate.

A number of reforms relating to incapacity benefits have been carried out in many European countries in recent years. As part of these reforms, there has been a strong emphasis on activating insured persons and using their retained capacity to work. Partial sick leave/graded sick leave/part time sick leave is also part of the issue of activating insured persons. The aim of the article was to review existing legal solutions in other European countries and compare this with the Polish regulation. In Poland, performing gainful employment while receiving sickness benefit (as well as rehabilitation benefit or sick pay paid by the employer) results in the loss of the right to this benefit. This is the very opposite strategy to the direction presented above of activating insured persons and using their retained capacity to work. Furthermore, the regulation referred to has raised a number of questions. The introduction of partial sick leave would be a major breakthrough for Polish social insurance science, and it would also have significance in the field of labour law. There are a number of compelling reasons in favour of such a direction.

The study presents the position of the Supreme Court's jurisprudence regarding the grounds for awarding compensation instead of demanded in the lawsuit reinstatement due to defective termination of an employment contract by the employer, with particular emphasis on determining the conflict of the dismissed employee with the management of the workplace or with co-workers.