Labour and Social Security Journal 10/2023

In every area of social life, digitalisation has advantages and limitations. This also applies to social work. The digitalisation of social work is inevitable and brings numerous challenges. Challenges arise when actors (individuals, organisations, social groups) operate under conditions of uncertainty. At the same time, they assess that they have a good chance to maintain control over the change processes and to find the most beneficial solutions. The article characterises the following challenges: deontological-ethical, professional, educational and institutional-organisational. The article is analytical and descriptive in nature. It is based on an analysis of the literature on the subject and a nonsystematic observation of the debate on the effects of digitalisation in various areas of social life.

The concept of the workplace and working time is considered to be crucial for establishing the existence of an employment relationship, although in the nomadic model is equally crucial to deprive work of attachment to a place and blur time boundaries – so as to adjust it to individual preferences. This undoubtedly also has consequences for the element of subordination, especially with its construction adopted in Poland, because those one of the most important spheres of power of the employer – place and time – are almost eliminated in the nomadic model. The nomadic model is proliferating thanks to the ubiquity of personal digital technologies and information infrastructures coupled with changing work norms. This model and less radical models of work performed by means of distance communication certainly do not determine the direction of employment law development, but their context prompts reflection in what direction labor law should go and what is the area of research that should be undertaken, so to shape the labor law system in a way that meets the needs of business.

Article 755⁵ of the Code of Civil Procedure, which was introduced in June by the Act on bridging pensions, amending certain other Acts, introduces important extensions of the mechanism of protecting the claims of particularly protected employees related to claims for the ineffectiveness of termination or returning the employee to work. Due to its essential importance for the functioning of employment relationship, the new provision requires deeper reflection sine ira et studio in the dogmatic aspect. It is doubtlessly a manifestation of the realisation of the protective function of procedural labour law, whose aim is to strengthen the position of employees who are particularly vulnerable to the termination of employment relationship in the course of long-lasting court proceedings. In the light of this normative regulation, the question arises whether this function has not been unjustifiably and excessively extended and whether its consequences will not result in aspecific employee immunity for certain groups of employees. This might, as a result, disturb the homeostasis between the parties to the employment relationship.

The purpose of the study is to indicate the essence and conditions of the protection of temporary incapacity to work due to illness for the period after the termination of the title of sickness insurance, and to indicate their consequences for the way it is formed and the practice of applying the provisions of the Act of June 25, 1999 on cash benefits from social insurance in case of illness and maternity, which relate to it. Realization of the purpose of the study was based on three basic assumptions: 1) sickness insurance is a system of protection in the event of the occurrence of a specific social risk within the framework of the social insurance system (law), which is one of the legal forms of realization of the right to social security, 2) sickness insurance benefits are intended to secure the effect of a fortuitous event and compensate for wages (income) lost due to incapacity for work as a result of illness, 3) the provisions defining exceptions to the general regulations should not be interpreted extensively. Consideration of the title protection is warranted not only by the state of the discussion on it to date, but also by its practical dimension.

The aim of the article is to characterize the role of contributions in social insurance of entrepreneurs. The legal position of this group of insured, who are payers of contributions for their own insurance, has developed in a particular way because one of the premises to grant them performances from social insurance is the actual payment of insurance contributions. This condition concerns both shortterm and longterm performances. This coupling between the right to a performance and payment of contributions for one's own insurance is a special feature of the insurance method. Moreover, adopting such a construction towards the insured – entrepreneurs, is justified by the gainful activity performed by them in their own name and at their own risk. By relying on the economic rationality of the insured who hold a personal interest in reliable and timely payment of contributions, a general social goal is also realized in the form of effective obtaining of contributions to insurance funds.

The scope of the employee's liability for damage caused to the employer depends on whether the behaviour causing the damage was intentional or unintentional. The legislator clearly stated in Art. 122 of the Labour Code that if an employee intentionally caused damage, he is obliged to repair it in full, without determining the extent to which the employee who caused the damage while intoxicated should be liable for damages. As a consequence, it should be decided whether the fact of the employee's consumption of alcohol (reaching for work intoxicated) should affect the assessment of his behaviour which is the source of the damage. It should be taken into account that the very construction of the institution of employee material liability meets specific axiological assumptions (not limited to the compensatory function, as is the case with civil liability), and the very fact of being intoxicated (in the broad sense of the word) at work, already constitutes a breach of a basic employee duty. Taking into account the above circumstances, the text reconstructs the possible models of the scope of the employee's liability for damage caused while intoxicated. being after drinking alcohol does not affect the extent of liability, and the above is determined only by establishing that the employee's behaviour causing the damage was intentional. Further, the article presents a model of violation of the employee's pattern of conduct, in which the mere fact of failure to comply with the duty of sobriety actualizes full responsibility for the damage caused in this state. Finally, the third extreme model is the model of civil liability, in which the fact of being intoxicated at work causes the employee to leave the social role of the employee, which in turn means that he can no longer take advantage of the benefits of the employee responsibility regime.

Analysing the models presented above ultimately leads to the conclusion that one should opt for the model of violation of the responsible employee pattern, the more so that this model most widely meets the axiological assumptions (both for employees and employers) of limited material liability, and also does not allow for the relativization of intoxicated employees who are the source of damage. Of course, in order to unambiguously resolve the indicated problems and repeal interpretation discrepancies, the author formulates de lege ferenda postulates, clearly determining the conditions of full liability for damage caused by an intoxicated employee.

The resolution of the Supreme Court of 16 February 2023 in case III UZP 6/22 does not solve the problem related to the rules for filling in ZUS IWA information. In the Court's opinion, the frequency index of employees in hazardous conditions, used when calculating the interest rate of accident insurance premiums, should be determined taking into account the equipment of employees with personal protective equipment, eliminating the entire risk resulting from exceeding the permissible standards. However, the interpretation of the Supreme Court does not determine how to objectively state that the threat has been eliminated. It only indicates that the decision in this area should be supported by the expertise of the laboratory or the opinion of the National Labour Inspectorate. However, labour inspectors do not have the legal possibilities and tools to issue such an opinion. At the same time, they face the problem of how to interpret the law during inspections carried out in a given area. The interpretation of the Supreme Court is in contradiction with the previous pragmatics of applying the regulations and the interpretation presented by the Ministry and the Social Insurance Institution. In these circumstances, the only solution seems to be to introduce legislative changes in order to clearly determine the method of determining the number of people working in hazardous conditions.

The study presents the statement of the Supreme Court regarding the employer's freedom to create and to liquidate particular work positions. The main lines of jurisprudence that have developed in this area over the years have been highlighted. Against this background, the author presented the latest judgment of the Supreme Court, in which it was decided that the liquidation of a work position after a court decision reinstating the employee in that position cannot be considered a real reason justifying employer's notice of the employment contract for an indefinite period (Article 45 § 1 of the Labor Code).