Z Problematyki Prawa Pracy i Polityki Socjalnej

Protecting employees from automated discrimination on the example of the recruitment and selection process of employees

Weronika Głodek — 2024-12-04

This article examines the impact of the technological revolution on changes taking place in the field of employment, which is a topical issue in both international and domestic law. The purpose of the article is to indicate how current legislation, as well as its drafts, contribute to the protection of job applicants involved in the employees’ recruitment and selection process. The article also addresses the issue of liability for the
phenomenon of “automated discrimination” that can occur in connection with the use of artificial intelligence algorithms in the employee recruitment and selection process.

Choice, workplace flexibility and care needs in the digital age: a comparison between the German and Italian legal approaches

Raffaello Santagata de Castro — 2024-12-04

The aim of this paper is twofold: to highlight the potential and limitations of the new right to request flexible working arrangements for caring purposes, as established in Directive no. 2019/1158, and to consider, through an overview of the EU law, whether and to what extent this right can be interpreted in a manner that truly favours the interests of workers with care-related responsibilities over those of employers. The paper analyses some examples of approaches taken regarding the implementation of the right to request flexible working arrangements in two different jurisdictions, such as Germany and Italy, and compares the transposing choices made in the two different legal contexts. The author argues, also in light of this investigation, that the potential of the duty to provide flexible working arrangements could be, to a certain
extent, enhanced through the application of the prohibition of indirect discrimination, from which a sort of duty of accommodation could be inferred. The duty to provide flexible working arrangements could constitute the procedural tool to apply and enhance the proportionality test and reasonable accommodation.

Between orality and writability of a court proceeding: characteristics, nature and goals of the annex to the minutes concerning employee issues

Michał Matuszak — 2024-11-22

In recent years, more and more employee cases have been brought to court. The proceedings are becoming more formalized and complicated. Legal dispute parties have numerous tools at their disposal that can be used to obtain a result, including the institution of an appendix to the minutes. This issue has not been analyzed very often by the doctrine in the past, so there is room for consideration. The article presents the appendix to the minutes from a practical perspective, and indicates the opportunities and difficulties that are directly and indirectly related to it.

Labour market transitions – current problems and proposed solutions

Maciej Ekert — 2024-09-06

The article aims to address the issue whether the Polish legislation on employment promotion and labour market institutions requires a reform. Economic processes, which can be observed worldwide and which will substantially impact the labour market, including the one in Poland, are currently underway. The paper also aims to introduce the readers to the concept of A Just Transition. The article compares foreign approaches to Polish legal regulations with respect to conducting active labour policies, promoting employment and safeguarding employees exposed to negative effects of transition. The article argues that Poland is not ready for the present changes arising from climate, digital, or demographic transformation. The findings should facilitate the development of suitable labour market policies in this area.

Mechanisms That Could Be Used to Prevent Diplomats from Abusing the Immunities and Privileges of Their Authority

Lama Allan Abusamra — 2024-08-22

The issue of abuse pertaining to diplomatic privileges and immunities is of significant concern, as it has the potential to disrupt diplomatic relations. This issue can be attributed to the rise in the number of individuals who are granted immunity. Insufficient training of diplomatic personnel and a deficiency in ethical guidelines have played a role in the increasing occurrence of diplomatic envoys exploiting their diplomatic privileges and immunities. This has prompted states to enforce the regulations governing diplomatic privileges and immunities more strictly and to propose remedies to combat such misconduct.

Securing employee claims in the light of the amendment to the Code of Civil Procedure of July 28, 2023

Joanna Kruk — 2024-06-03

The aim of this article is the analysis of the issues related to securing employee claims in the light of the amendment to the Code of Civil Procedure of July 28, 2023. The possibility of issuing an order to employ a dismissed employee before the final conclusion of the proceedings or – what is more – before its substantive resolution, may significantly interfere with the employer’s freedom to choose employees. Additionally,
limiting the court’s freedom in granting security may raise many controversies.

Offering employment opportunities at cultural institutions

Agnieszka Sikora — 2024-04-25

The aim of this paper is to present the problems of offering employment opportunities at cultural institutions within the context of the law as it stands, with a focus on regulations other than the provisions of the Polish Labour Code. The paper discusses the legal framework for employing managers and other personnel, and pays attention to the specific nature of legislation that applies to this category of personnel. The author draws on her own experience to identify the key issues and challenges related to the HR/personnel policies at cultural institutions.

An order to employ employees particularly protected seeking work reinstatement. A critical analysis

Monika Latos-Miłkowska — 2024-04-25

On September 22, 2023, art. 7555 of the Code of Civil Procedure came into force, establishing a new means of securing the claim in the form of an obligation to continue the employment of employees particularly protected against termination of employment contract, who have filed a claim for reinstatement, until the final conclusion of the proceedings. Art. 7555 of the Code of Civil Procedure has a very specific character – both in the light of the basic principles of labor law, especially the principle of voluntary establishment of an employment relationship, and under the provisions of civil procedure, constituting a far-reaching exception to art. 731 of the Code of Civil Procedure. Due to the above, the provision raises significant doubts and concerns, especially on the part of employers. In this study, the authors conduct an in-depth analysis of Art. 7555 of the Code of Civil Procedure and attempt to evaluate the regulation.

Limitation of claims in Directive 2023/970 and the protection of the employee’s right to equal pay

Krzysztof Kurosz — 2024-04-08

The article presents the position that laws on limitation periods are an important element of effective protection of an employee’s right to equal pay. This should be seen in the broader context of the European legislator’s desire to make laws on equal treatment more effective and to close the pay gap. Directive 2023/970 emphasises the right to information, and this premise logically means that the beginning of the limitation period requires that the employee be aware of the infringement or that the employee can be reasonably expected, in the applicable circumstances, to be aware of the infringement. Article 21 of Directive 2023/970 provides, inter alia, that limitation periods may not begin until the claimant is aware of, or can reasonably be expected to be aware of, the infringement. This provision builds on the existing case-law of the CJEU. We argue that despite the adoption of a very similar rule in the case-law of the Supreme Court, Article 21(1) of Directive 2023/970 needs to be implemented verbatim into Polish law. This is due to structure-related doubts about the liability regime for breaches of the principle of equal treatment in employment relationships. We accept that it is contractual in nature, but this does not preclude the adoption of a subjective model for enforceability of claims, characteristic of a different tort liability regime. The reason for this is the protection of an employee. The article also argues that intertemporal problems associated with a possible optional extension of protection (the limitation period does not commence during the employment relationship) can be solved by applying the Civil Code of 23 April 1964 accordingly.

A social dialogue in the civil service

Jakub Szmit — 2024-04-03

The civil service corps consists of people employed in clerical positions in the government administration offices. Therefore, it is a professional group that remains in a very close relationship with the state, which, pursuant to art. 20 of the constitution should implement, among others, solidarity, dialogue and cooperation of social partners. This article analyses the extent to which this task is carried out in relation to the civil service, that is, at the level where the role of the state is not limited to being a legislator alone, but it also acts as an actual employer.

Sources of financing of the activity of trade unions

Helena Szewczyk — 2023-11-21

The Trade Unions Act does not name all the sources of internal and external financing of trade unions. The sources include membership fees, donations from third parties or income from business activities conducted by the association. It is hard not to notice, de lege lata, problems related to the rights of trade unions and their future role in the area of labor relations under the current provisions of the Trade Unions Act concerning the functioning of trade unions, e.g., regarding the financing of their activities. Undoubtedly, the current model of financing employee representation is far from perfect. Due to cases of abuse of Art. 24 of the Trade Unions Act, one should in particular call for a change in the current model in which trade unions
independently use their own legal personality when conducting business operations.

Possible remedies to prevent the misuse of diplomatic immunity

Lama Allan Abusamra — 2023-05-30

Since 1945, diplomatic immunity has altered. There are many factors which inhibit immunity. Firstly, consistent Cold War retaliation existed. Second, national security in the nuclear age was prioritized. The intricacy of international politics and mission expansion influenced a change. Also, the abuse of diplomatic and non-diplomatic immunity necessitated modification. In the 1960s, when hundreds of diplomats were sued, diplomatic immunity was called into doubt. Diplomatic abuses should force a reform of the Vienna Convention. Functional needs explained immunity modifications in the 1960s. Increasing and expanding immunity categories contributed to the improvement of the theory. However, there is no abuse remedy that is universally acceptable and enforceable. Should functional necessity theory replace immunity’s cloak? The pacta sunt serva concept of the noncontroversial law of treaties could be utilized to obtain multilateral agreement on the nature, cause, and effect of the functional necessity theory. A Permanent International Diplomatic Criminal Court with mandatory jurisdiction over accused diplomats and its own punishment system has been under discussion since the late 1980s. It never occurred, yet it may have resolved the diplomat disagreement between the victim and the accused.

ILO Convention No. 190 concerning the Elimination of Violence and Harassment in the World of Work and Recommendation No. 206

Eva Kocher — 2023-05-23

Violence and harassment are present in the world of work in the most diverse forms2. The ILO Violence and Harassment Convention 20193 should therefore be of great importance for labour law practice. It was adopted on 21 June 2019, together with the non-binding Recommendation for Implementation (No. 206)4, on the occasion of the centenary of the ILO.
As the Convention falls partly within the competence of the European Union, with the EU not being able to ratify the Convention itself5, the European Commission has invited the member states to ratify the Convention by the end of 20226. The German Federal Government is currently planning ratification.
In the following, I give an overview of the Convention and, using German law as an example, discuss how it could be implemented in a legal system shaped by EU law.

On the anxiety concerning of imminent prospect of the microchipping of employees: Remarks in the context of the emerging legislation in the USA

Barbara Surdykowska — 2023-04-19

Barbara Surdykowska draws attention to legislation, specifically in the US, which prohibits (or emphasizes the importance of the employee’s consent to) subcutaneous microchipping in the context of work relations. In Surdykowska’s opinion, issue of the use of microchips in the labor context and the potential decisions of the legislator may serve as a litmus test of reactions to the expected technological transformation. The simultaneous and progressive use of subcutaneous microchips is at this point a very early phase of the phenomenon of the cyborgization of the employee’s body.

EU law and problems of the codification of the Bulgarian labour legislation

Krassimira Sredkova — 2023-04-19

Based on historical experience, in Bulgarian labour legislation, in recent years the problem of the state of its codification has become more and more pronounced. This condition is alarming. In the presence of a reasonable, comprehensive code, laws are being constantly adopted on separate issues that either do not regulate anything specific, or repeat provisions of the Labour Code. Furthermore, the body of by-laws
keeps expanding uncontrollably. Most often this is explained by some requirements of EU law, new socio-economic conditions, etc., while in fact this expansion is due to inadequate expertise of the law-making bodies, interference of non-legal considerations, etc. This creates many difficulties in understanding and applying labour legislation.