Remedies and enforcement

AuthorBojarski, Lukasz
Pages71-87
71
6 REMEDIES AND ENFORCEMENT
6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,
a) Available procedures for enforcing the principle of equal treatment
In Poland, the following procedures exist for enforcing the principle of equal treatment:
Civil law
The ETA introduced a compensation claim (Articles 12-13) stating that anyone (natural
and legal persons) who suffers an infringement of the principle of equal treatment is
entitled to damages. The relevant general rules of the Civil Code and the Code of Civil
Procedure apply. Court verdicts are binding.
In addition, in matters not covered by the ETA, recourse may be made to civil law, which
affords protection of ‘personal rights’ (Articles 23-24 of the Civil Code). According to
Article 30 of the Constitution, the inherent and inalienable dignity of the individual is a
source of f reedoms and rights for individuals and citizens. It is inviolable. The respect
and protection thereof is the obligation of the public authorities. Article 23 of the Civil
Code (which should be interpreted in line with the above-mentioned constitutional
provision) provides for general protection of ‘personal rights’. According to this provision,
personal rights in particular, health, freedom, honour, freedom of conscience, name or
pseudonym, image, privacy of correspondence, inviolability of the home and scientific
and artistic work, as well as inventions and improvements are protected by civil law
without prejudice to any protection provided by other regulations.
The provision quoted does not include dignity or, for instance, age, disability, ethnic
origin, race or sexual orientation, but the list of ‘personal rights’ is not exhaustive. There
is no doubt that personal dignity is protected (as stated in the Constitution and confirmed
by a wealth of legal writings and jurisprudence). Therefore, if a person is discriminated
against outside the labour context on the grounds of age, sexual orientation, race or any
other reason, the dignity of that individual is obviously infringed and they may try to
seek redress through this general civil clause. This provision on personal rights was used.
for example. in two cases related to access to services for people with disabilities.
In the case Jolanta K. v. Carrefour Polska Sp.z.o.o.,251 the issue concerned access to a
supermarket for a blind person with a guide dog. The parties reached a settlement in
court. Carrefour also announced that the company has changed its negative internal
rules on people with disabilities. In addition, the case resulted in a n amendment to Polish
law in relation to access specifically for blind people with guide dogs to grocery stores,
restaurants and similar premises (in force since June 2009).
In the case Dominik Rymer v. XY, owner of the Sfinks restaurant252 the issue concerned
access to a restaurant by a wheelchair user with an assistance dog. The court stated that
refusal of access to a restaurant by a disabled person with an assistance dog violates the
protection of ‘personal rights’, and violates the principle of equal treatment in access to
services offered to the public. Interestingly, the claimant lost his case in the first instance
court. The Regional Court decided with quite an extraordinary justification that his
personal rights were not violated since he was an active person who enjoyed sport, which
was a kind of therapy for him, and was therefore strong psychologically and self-
confident.
251 Warsaw Regional Court, judgment of 28 January 2009, No I C 498/08.
252 Warsaw Court of Appeal, judgment of 28 September 2011, No I ACa 300/11.
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On the basis of Article 24(1) of the Civil Code, an individual whose personal rights are
jeopardised by another’s actions can demand that the action cease, unless it is not
unlawful. Furthermore, if personal rights have been infringed, the individual concerned
can demand that the person who infringed them rectify the effects of the violation, - in
particular, by making a statement of appropriate content and form. The claimant can also
demand pecuniary satisfaction or payment of an appropriate sum to a designated social
cause based on the rules of compensation laid down in the Civil Code. If the infringement
of personal rights results in material loss, the victim may demand compensation on
general legal terms (Article 24(2)). Court verdicts are binding.
Labour law
Prior to 2011, a discrimination compensation complaint had been introduced only in the
Labour Code, effective as of 1 January 2004 (Article 18(3d)). Anyone who suffers an
infringement of the principle of equality in employment is entitled to commence judicial
proceedings and seek compensation of at least the minimum monthly salary. The labour
court which determines the compensation will take into consideration the type and
gravity of the discriminatory measures applied in respect of the complainant. Court
verdicts are binding.
Furthermore, the principle of equal treatment and non-discrimination is considered to be
one of the fundamental obligations of the employer to the employee. Therefore, the
employee is entitled to terminate their labour contract without prior notice on the basis of
a grave infringement by the employer of fundamental obligations towards the employee
(Article 55(1)(1) of the Labour Code).
An employee is also entitled to initiate judicial proceedings in order to establish the
existence of a labour relationship with a specific content, e.g. in order to determine
appropriate remuneration when this has been reduced in a discriminatory manner.253
Labour inspectors
In addition, certain remedies may be applied by the labour inspectors, who supervise and
monitor the observance of labour law (including anti-discrimination provisions).
According to the Act on the National Labour Inspectorate, a labour inspector may issue
orders or improvement notices, make submissions or bring claims to a labour court if the
establishment of the existence of a labour relationship is at stake.254 Measures taken by
labour inspectors are binding, but the employer may challenge them in an administrative
court.
Legal representation and court fees
As far as legal representation is concerned, some preferential treatment is allowed in
labour cases. In principle, legal representation may be provided by an advocate
(attorney-at-law) or a legal adviser,255 but for an employee, a representative of a trade
union, a labour inspector or another employee of the enterprise may also act as a legal
representative.256 In addition, in labour cases, claims are automatically exempted from
court costs (with some exceptions).257
Petty crimes
The Law on Petty Crimes258 defines the refusal to sell goods as a petty crime. This
provision stem from the Communist era and had a different meaning at that time, but it
253 Proceedings on the basis of Article 189 of the Code of Civil Procedureś see Rczka K. and Salwa. Z. (ed.)
(2004) Kodeks pracy. Komentarz, 6th ed., Warsaw, p 72.
254 Act on the National Labour Inspectorate (Ustawa z 13 kwietnia 2007 r. o Pastwowej Inspekcji Pracy),
Dz.U.2012.404 j.t., 13 April 2007, Articles 21-33. See also Article 63(1) of the Code of Civil Procedure.
255 Code of Civil Procedure, 17 November 1964, Article 87(1).
256 Code of Civil Procedure, 17 November 1964, Article 465(1).
257 Act on Court Costs in Civil Cases (Ustawa z dnia 28 lipca 2005 r. o kosztach sdowych w sprawach
cywilnych) (Dz.U.2018.300 t.j.), 28 July 2005, Article 35.
258 Act on Petty Crimes (Ustawa z dnia 20 maja 1971 r. Kodeks wykrocze) (Dz.U.1971.12.115), 20 May 1971.

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