AuthorBojarski, Lukasz
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
National law provides for an exception for employers with an ethos based on religion or
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.
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
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:
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).

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