Labour law updates and recommendations 2022

How does the new Act on the Defence of the Homeland affect employers?

The Act on the Defence of the Homeland (“the Act”) entered into force on 23 April 2022. Its purpose is to systematise and clarify the provisions of military law and the issue of performing the obligation to defend the Republic of Poland. What issues does this raise for employers that employ individuals who decide to perform military service?

Type of service

First of all, it is important to remember that the rights and obligations of employers and employees depend on whether an employee is a professional or non-professional soldier.

The employment relationship with an employee called up for professional military service expires on the day he/she reports for that service (a serving professional soldier is not allowed to take up paid work or run a business). However, the employer must pay an employee-soldier’s last remuneration by the end of the calendar month in which he/she is obliged to report for duty.

The situation is different for non-professional soldiers, i.e. mostly those performing basic military service (which can last up to one year) or territorial military service (which can last from one to six years).

Employer cannot terminate the employment contract 

The employment relationship of a non-professional soldier performing military service does not expire – it is actually subject to statutory protection and the possibility of terminating it is strictly limited. The purpose of this solution is to provide a guarantee of employment with an existing employer as a form of motivation to perform military service, i.e. so that a person who decides to perform military service does not have to worry about losing his/her job due to being absent from work.

Therefore, employers will have to take the status of the employee-soldier into account when making employment-related decisions. An employment contract with a non-professional soldier can only be terminated with the consent of the employee – with the exception of contracts entered into for a trial period or for a fixed period not exceeding 12 months, and when the employer can terminate the contract without notice due to the fault of the employee or in the event of the employer’s bankruptcy or liquidation[1].

In some cases, the protection of the employment relationship goes even further and includes not only the soldiers but also their spouses. Pursuant to the Act, during the period of a soldier’s compulsory military service, the employer may terminate the employment relationship with his/her spouse only due to the fault of the employee or in the event of the employer’s bankruptcy or liquidation.

Employer does not pay the employee’s remuneration for time spent on military service

If an employee does not perform work due to being on military service, the employer must grant him/her unpaid leave. During this leave, the employee retains all the rights arising from the employment relationship, with the exception of the right to remuneration. As a result, the employer should not have to bear excessive costs associated with maintaining the employment relationship with an employee who is absent due to military service.

Employer’s right to be informed

The possibility that an employee may be called up for military service naturally raises questions and concerns regarding, among other things, the organisation of work in the employee’s absence and the employer’s access to data that would enable it – at least to some degree – to verify the information received from the employee with the facts.

The Act provides several mechanisms to facilitate this. These include:

  • the possibility for the employer to gain access to the personal data of its employees that will be kept in military records,
  • the obligation of the Head of the Military Recruitment Centre to inform the employer of the mobilisation of its employee, with the exception of being called up to professional military service and or being called up to report immediately,
  • the employee’s obligation to immediately inform a territorial defence volunteer of his/her mobilisation, the dates when he/she is required, and any possible changes to those dates.

However, the practical effectiveness of these mechanisms is questionable – from the perspective of employers, the best solution would certainly be to create mechanisms allowing the employer to obtain information on the status of employees and their spouses in relation to the performing of military service; however, the Act does not do so.

***

The Act on the Defence of the Homeland is a positive step towards the unification of regulations related to military service. From the point of view of employers, given the extension of protection against termination of employment to further groups of employees, it is important to remember that personnel decisions should be preceded by careful verification of all the circumstances of specific cases.

 

Michał Synowiec, Counsel 

Marta Borówka, Associate

Agnieszka Tarasiuk, Junior Associate

 

[1] Surprisingly, the legislator, probably by mistake, did not use here codified and wider meaning of the term “liquidation of the employer”.