Personal and material scope

• Author: Bojarski, Lukasz
• Pages: 33-52

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3 PERSONAL AND MATERIAL SCOPE

3.1 Personal scope

3.1.1 EU and non-EU nationals (Recital 13 and Article 3(2), Directive 2000/43

and Recital 12 and Article 3(2), Directive 2000/78)

In Poland, there are no residence or citizenship/nationality requirements for protection

under the relevant national laws transposing the directives. However, Article 5(9) of the

ETA (transposing the directives) provides that the Act does not cover differences in

treatment based on nationality, especially in relation to entry into and residence in

Poland and in relation to the legal status of natural persons who are citizens of countries

other than EU Member States, Member States of EFTA or the Swiss Confederation.

The 2016 amendment to the ETA added citizenship as a protected ground, but only for

some categories of people.85 This Act implements EU Directive 2014/54/EU of 16 April

2014 on measures facilitating the exercise of rights conferred on workers in the context

of freedom of movement for workers. The amendment to the ETA adds one more

discrimination ground by stating in Article 1(2) (previously only Article 1(1) listed

discrimination grounds) that the ETA provisions regarding nationality should adequately

apply to the citizenship of persons exercising freedom of movement for workers within

the scope defined in Articles 1-10 of Regulation (EU) No. 492/2011 of the European

Parliament and of the Council of 5 April 2011 on freedom of movement for workers within

the European Union.86

At the same time, however, the provisions of the Labour Code apply in principle to all

employees and employers without any distinction on the basis of nationality, citizenship

or status.87

There is a wide range of possible categories which allow the individuals belonging to

them to be covered by the provisions of the Labour Code.

In respect of aliens, in most cases they are required to obtain a work permit. However,

there are several exceptions that relate to citizens of the Member States of the European

Union and other countries covered by agreements on the free movement of people, as

well as to people who have been granted different categories of stay permit, refugee

status or similar. Within these groups, no distinction as to nationality, citizenship or

status is made. The only relevant criterion is the legality of residence on the territory of

the Republic of Poland.

85 Act on the amendment of the Act on the Promotion of Employment and the Institutions of the Labour

Market, Act on the National Labour Inspectorate and Act on the Implementation of Certain Provisions of the

European Union in the Field of Equal Treatment (Ustawa z dnia 29 kwietnia 2016 r. o zmianie ustawy o

promocji zatrudnienia i instytucjach rynku pracy, ustawy o Pastwowej Inspekcji Pracy oraz ustawy o

wdroeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania) (Dz.U.2016.691), 29

April 2016.

86 This amendment also changed two other Acts. In the Act on the Promotion of Employment and the

Institutions of the Labour Market, 20 April 2004, as amended, it added (in Article 4(1)(7a)) monitoring,

analyses and supporting of equal treatment of country nationals from EU and EEA countries exercising

freedom of movement for workers within the scope defined in Articles 1-10 of Regulation (EU) No. 492/2011

of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within

the Union to the competences of the Minister of Labour. In the Act on the National Labour Inspectorate

(Ustawa z 13 kwietnia 2007 r. o Pastwowej Inspekcji Pracy), 13 April 2007, it added new competences to

the National Labour Inspectorate, including (in Article 10(1)(14a)) providing advice to promote the equal

treatment of citizens of EU Member States, the European Free Trade Association (EFTA) – parties to the

Agreement on the European Economic Area that exercise freedom of movement for workers and members

of their families.

87 See Labour Code, 26 June 1974, Articles 1-3, which do not include any criteria related to nationality or

citizenship.

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3.1.2 Natural and legal persons (Recital 16 Directive 2000/43)

a) Protection against discrimination

In Poland, the personal scope of anti-discrimination law covers natural and legal persons

for the purpose of protection against discrimination.

Recital 16 was transposed into the ETA. Both natural and legal persons are protected

against discrimination (Article 2(1)) but according to Article 10, protection for legal

persons extends only to the grounds of the race, ethnic origin and nationality of their

members. All forms of discrimination are prohibited.88

The right to compensation also applies to legal persons (Article 12(2), Article 13) within

the protection provided in Article 10 (only on the grounds of the race, ethnic origin and

nationality of their members).

b) Liability for discrimination

The personal scope of anti-discrimination law covers natural and legal persons for the

purpose of liability for discrimination.

With regard to liability, national law (Article 2(1) of the ETA) does not distinguish

between natural and legal persons.

3.1.3 Private and public sector including public bodies (Article 3(1))

a) Protection against discrimination

The personal scope of national law covers the private and public sectors, including public

bodies, for the purpose of protection against discrimination.

National law (Article 2(1) of the ETA) is applicable to both the private and public sectors,

including public bodies.

b) Liability for discrimination

The personal scope of anti-discrimination law covers the private and public sectors,

including public bodies, for the purpose of liability for discrimination.

National law (Article 2(1) of the ETA) is applicable to both the private and public sectors,

including public bodies.

3.2 Material scope

3.2.1 Employment, self-employment and occupation

In Poland, national legislation applies to all sectors of private and public e mployment,

self-employment and occupation, including contract work, self-employment, military

service and holding statutory office, for the five grounds.

Until 2010, national legislation applied to all sectors of public and private employment

and occupation, but only to work performed on the basis of a labour contract. The most

relevant act in this context was, and still is, the Labour Code.

88 See also ETA commentary 2017, p. 94.