On 2 October 2012, Poland's Constitutional Tribunal issued a judgment stating that the currently applied principles of settling bank holidays that fall on non-working days other than Sunday infringe the Constitution.
Binding legal status
Since January 2011, there has been a provision in the Polish Labour Code according to which if, under an adopted working time schedule, a bank holiday falls on a nonworking day other than Sunday, this will not be deducted from the employee's targeted monthly working time. This provision introduced an exception to the rule that each bank holiday which within a settlement period falls on a non-working day other than Sunday, reduces an amount of working time by 8 hours. It should be emphasised that under the Labour Code, Poland has a 5-day working week, which means that apart from Sunday, employers must guarantee their employees an additional non-working day -- not necessarily Saturday -- within a week. Moreover, the Constitution ensures employees' right to a day off work on bank holidays, of which there are 13 in Poland.
Practice of application
Shortly after being introduced, the provision was challenged by Trade Union Organization NSZZ Solidarność. From the very beginning, employers encountered problems in applying the provision introduced in January 2011. For instance, if there were various groups of employees in a company for which various working time schedules applied, those groups were entitled to a different number of non-working days, as not all employees had a non-working day on the same weekday. This situation was not problematic unless a bank holiday happened to fall on a non-working day. However, it often happened that in one company, e.g. administration employees had two non-working days, since a bank holiday did not fall on their nonworking day, whereas production employees lost one of those days, since under the working time schedule for those employees a bank holiday fell on their non-working day. The absence of an obligation to such employees back a non-working day resulted in a different number of non-working days, and also in disproportions in the remuneration for overtime hours, duties and allowances.
Consequences of the Constitutional Tribunal's decision
The Constitutional Tribunal held that a provision depriving employees of a nonworking day instead of a bank holiday falling on an additional non-working day, e.g. on Saturday, was contrary to the constitutional principle of equality, as it groundlessly diversified the number of non-working days to which individual employees were entitled.
Thus, as a consequence of the Constitutional Tribunal's judgment, it will not be possible to combine a non-working day resulting from the Labour Code with a bank holiday. Thanks to this decision, employees may obtain up to 13 non-working days within a year. If it happens that a non-working day and a bank holiday coincide, employers will be obliged to give employees a non-working day on another day.
Settlement of working time under new rules
The Constitutional Tribunal did not decide to adjourn the loss of binding force of the challenged provision. This means that the provision ceased to be binding upon its publication in the Journal of Laws, which was on 8 October 2012.
Conclusions
Employers have to analyze their working rules and working time schedules for the last quarter of this year as soon as possible. Where a bank holiday and a nonworking day of a given employee, resulting from a 5-day working week, coincide, the employer must provide the employee with an additional non-working day. Otherwise, the employer may face employees' claims for overtime work and for unequal treatment.
The judgment does not affect working time schedules in which a non-working day is on a Saturday, as no bank holiday falls on a Saturday in 2012 and 2013. However, if a non-working day was planned on another weekday, e.g. Thursday, then existing working time schedules need to be adjusted.
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