Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Bojarski, Lukasz
• Pages: 69-70

69

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive

2000/78)

a) Scope for positive action measures

Positive action is permitted in national law in respect of racial or ethnic origin, religion or

belief, disability, age or sexual orientation.

The ETA provides in general (Article 11) that adopting specific measures that are aimed

at preventing or compensating for unequal treatment linked with inequality does not

constitute a breach of the principle of equal treatment (all grounds are protected by law).

The 2003 amendment of the Labour Code, which took effect on 1 January 2004,

introduced a clear and general stipulation allowing for positive action in employment

relations.242 This provision covers positive action not only for racial or ethnic origin,

religion or belief, disability, age and sexual orientation but equally for some additional

grounds: gender, political opinion and membership of a trade union.

According to the Labour Code, positive action can take the form of specific measures

introduced for a limited period of time in order to equalise opportunities for all, or a

significant number of, employees who are distinguished by at least one of the grounds

named above. These measures must be aimed at compensating for the disadvantages

experienced by such employees.

A comparison of the ETA and the Labour Code shows that in the latter, the law mentions

‘a limited period of time’ within which positive action may be introduced. However, this

should have no practical consequences.243

There is no significant case law concerning this issue.

b) Quotas in employment for people with disabilities

In Poland, national law provides for quotas for the employment of people with disabilities.

The Disabled Persons Act contains the ‘System of Quotas and Penalties’ – a system of

incentives and penalties for employers which aims to support the employment of people

with disabilities. Employers who, for at least 36 months, employ people who are officially

recognised as disabled (who are unemployed or seeking work while not holding a job , or

whose disability occurred while working for the employer, except if this disability was

caused by the fault of, or infringement of regulations by, the employer or the employee)

may receive reimbursements from the National Disabled Rehabilitation Fund (Pastwowy

Fundusz Rehabilitacji Osób Niepełnosprawnych - PFRON) for adapting existing

workstations or creating new ones to meet the needs of disabled people; adapting or

buying equipment to help disabled people to function at work; and having the needs of

persons with disabilities identified by occupational health services.244

Furthermore, an employer who employs people with disabilities is entitled to receive a

monthly subsidy for the remuneration of disabled employees.245 The amount of the

subsidy is related to the level of impairment of the people with disabilities who are

employed, and is currently approximately PLN 1 800, PLN 1 125 or PLN 450 (EUR 400,

EUR 200 or EUR 100), depending on the level of disability.246 An employer may also

242 Labour Code, 26 June 1974, Article 18(3b)(3).

243 ETA commentary 2017, p. 190.

244 Disabled Persons Act, 27 August 1997, Article 26.

245 Disabled Persons Act, 27 August 1997, Article 26a.

246 As of January 2019 (exchange rate approx. EUR 1.00=PLN 4.3)