Exceptions

• Author: Bojarski, Lukasz
• Pages: 53-68

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4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Poland, national legislation provides for an exception for genuine and determining

occupational requirements.

The ETA (Article 5(6)) introduces an exception as provided in Article 4 of the directives.

In fact, it is translated almost verbatim from the text of the directives. The exception

covers ‘possibilities and conditions of undertaking and conducting occupational activities

as well as training (including higher education)’.

The 2008 amendment to the Labour Code177 (Article 18(3b)(2)(1)) had already placed

national legislation regarding employment based on labour contracts in line with the

Directives. The notions of proportionality, legitimate aim and genuine and determining

occupational requirements were added. According to the Labour Code, an employer may

refuse to employ an individual on the basis of one or more grounds listed in the definition

of discrimination, if the type of work or working conditions means that the reason or

reasons for different treatment are genuine and determining occupational requirements.

There is no list of those genuine and determining occupational requirements given by the

law, so it is left to the evaluation of the judge. The test of the proportionality of measures

and the concept of legitimate aim was also introduced.178

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

National law provides for an exception for employers with an ethos based on religion or

belief.

The ETA (Article 5(7)) introduces an exception as provided in Article 4(2) of the

Directive. In fact, it is translated almost verbatim from the text of the Directive. It covers

the limitation of access to and the performance of occupational activities.

The ETA also amends the Labour Code, introducing the same exception in relation to

access to employment.179

However, the provisions in both the ETA and the Labour Code do not cover the part of

Article 4(2) of the Directive which stipulates that the difference in treatment should not

justify discrimination on another ground. In addition, as pointed out in the first

Commentary to the ETA, Article 5(7) added two notions to the exception: acting in good

faith and loyalty towards the ethics of a particular entity (such as a church or religious

organisation). According to the authors, this may raise doubts as to its conformity with

EU law, in that its approach is too wide.180

− Conflicts between rights of organisations with an ethos based on religion or belief

and other rights to non-discrimination

In Poland, there is specific case law relating to conflicts between the rights of

organisations with an ethos based on religion or belief and o ther rights to non-

discrimination in the context of employment.

177 Act on the amendment of the Act on the Labour Code, 21 November 2008, in force since 18 January 2009.

178 Labour Code, 26 June 1974, Article 18(3b)(2)(1) (as amended).

179 Labour Code, 26 June 1974, Article 18(3b)(4), amended by Article 25 of the Equal Treatment Act.

180 ETA commentary 2017, pp. 157-159.

54

In an interesting case decided in 2016 and mentioned above,181 YZ (a journalist and

known media personality) supported a petition to legalise civil partnerships, and shortly

after he lost a civil contract opportunity (as host of a concert organised by the Diocese –

work that he had already performed in previous years). YZ sued the Roman Catholic

Diocese of H. for compensation for infringement of the rule of equal treatment on the

ground of sexual orientation by association (direct discrimination and harassment). The

court of first instance182 dismissed the lawsuit. The court of second instance183 changed

the verdict awarding compensation. The court stated that the claimant had provided

enough evidence to substantiate discrimination and the burden of proof was shifted to

the respondent, who did not prove that there was no breach of the rule of equal

treatment. According to the court, the limitations stemming from Article 5(7) of the ETA

(the court of first instance referred to these) did not apply. The court concluded that the

respondent discriminated against the claimant – there was indirect discrimination

because of political opinion (wiatopogld) and not on the ground of sexual orientation.

− Religious institutions affecting employment in state-funded entities

Religious institutions are permitted to select people (on the basis of their religion) to be

hired for or dismissed from a job when that job is in a state entity or an entity financed

by the state.

In Poland, ‘religion’ (of any registered faith or religious organisation)184 is taught in

schools. Alternatively, for pupils not wishing to take part in religious instruction classes, a

course on ethics should be organised.

Based on the Ordinance of the Minister of Education on the conditions and manner of

organising courses on religion in state nurseries and schools,185 teachers of religion are

appointed to schools by their management only if they have an appropriate permit from

the relevant authorities of their particular faith or religious organisation. The authorities

of particular faiths are listed in the legislation on relations between the state and specific

religions. In relation to the Catholic Church, this provision also comes from the

agreement with the Holy See (the Concordat of 28 July 1993), which states in Article

12(3) that teachers of religion need a permit from the bishop (mission canonica) in order

to be appointed. According to the Ombud’s research (2015), approximately 60 per cent

of churches and religious organisations organise religious instruction lessons for their

denominations (almost one fifth of these organise such lessons outside the education

system).

The employment contract for teachers of religion has a dual character: it is a lay contract

(the state school pays the salary) but it also reflects the autonomy of particular faiths. In

the event that permission is revoked by a particular religious organisation, the teacher

automatically loses the right to teach religion. Depending on the status of the teacher,

181 See Section 2.1.3. b. The court rulings are public (although not published). However, the claimant asked

that the case not be publicised; it has therefore been anonymised.

182 District Court, Polish Society for Anti-Discrimination Law on behalf of YZ v Catholic Diocese of H., judgment

of 16 December 2016, No. I C 1326/15 (not published).

183 Regional Court, judgment of 22 March 2017, No. I Ca 75/17 (not published).

184 Act on Guarantees of the Freedom of Conscience and Religion (Ustawa z 17 maja 1989 r. o gwarancjach

sumienia i wyznania), 17 May 1989. The Act sets out the registration procedure for churches and other

religious organisations (zwizek wyznaniowy) and the criteria for registering churches or other religious

organisations (wyznanie). Criteria include application for registration by a minimum of 100 Polish citizens

and information describing the most important elements of the new church – its name, goals, etc. There are

currently over 160 registered churches and other religious organisations (zwizek wyznaniowy). See the list,

available at:

https://danepubliczne.gov.pl/dataset/koscioly_i_inne_zwiazki_wyznaniowe_wpisane_do_rejestru_kosciolow

_i_innych_zwiazkow_wyznaniowych.

185 Ordinance of the Minister of Education on the organisation of religious instruction in state nurseries and

schools (Rozporzdzenie w sprawie warunków i sposobu organizowania nauki religii w publicznych

przedszkolach i szkołach), 14 April 1992 (last amended 7 June 2017).