Employee protection period - when is it due and how much is it?

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People with 4 years remaining until retirement are one of the most protected groups of workers. The legislator made sure that their interests were protected, because due to their age, this group is the most exposed to discrimination on the labor market. Therefore, they are subject to a protection period, during which they cannot terminate their contract or change their terms of employment.

What is the legal age for pre-retirement protection?

The principles of pre-retirement protection are regulated by Art. 39 of the Labor Code (LC), which states that "the employer may not terminate the employment contract of an employee who is not more than 4 years old before reaching the retirement age, if the employment period enables him to obtain the right to retirement pension upon reaching that age".

Currently, it is not possible to terminate an employment contract for a woman who has turned 56 and a man who has turned 61. In the case of persons who, by virtue of their profession, are entitled to early retirement, the protection period begins 4 years before the date of acquiring the right to early retirement. The professions that are eligible for this entitlement are listed in the Regulation of the Council of Ministers of February 7, 1983 on the retirement age of employees working under special conditions or of a special character. These are i.a. miners or teachers, but also drivers of lorries over 3.5 tonnes or, for example, journalists covered by a collective agreement.

Can the period of protection exceed the qualifying age for an old-age pension?

As a rule, the protection period resulting from Art. 39 of the Labor Code lasts until the employee acquires the right to an old-age pension - after this date it ceases to apply and the employee may be handed a termination of the employment contract.

However, it should be remembered that on October 1, 2017, the Act of November 16, 2016 amending the Act on pensions and pensions from the Social Insurance Fund and certain other acts, which introduced transitional periods, entered into force. This means that, in some cases, people who will reach retirement age will still benefit from termination protection.

Art. 29.1. The Act of November 16, 2016 Amending the Act on Pensions and Pensions from the Social Insurance Fund and Certain Other Acts
"Employees who, on the date of entry into force of this Act, are not covered by the protection of the employment relationship pursuant to Art. 39 of the Act of June 26, 1974 - Labor Code and they reach the retirement age of 60 for women and 65 for men before the expiry of 4 years from the date of entry into force of this Act, are subject to the protection of the employment relationship referred to in this provision, for a period of 4 years from the date of entry into force of this Act, also when this period will expire after women have reached the age of 60 and men have reached the age of 65 ”.

Example 1.

On October 1, 2017 (the moment of entry into force of the above-mentioned act), Ms Zofia turns 59 years old. Under the new regulations, she may retire on October 1, 2018, which could mean that the protection period expires on that date, and thus Ms Zofia may be dismissed. However, the transitional provisions mean that the protection period is extended and lasts until Ms. Zofia acquires the right to retirement according to the old rules, i.e. until October 1, 2020. This means that Ms Zofia will be in the protection period for another 2 years after obtaining the right to retirement.

Example 2.

On September 23, 2017, Mr. Marian turned 63 years old, so when the act entered into force, i.e. October 1, 2017, he was in the protective period. Pursuant to the new regulations, the retirement age will reach September 23, 2019. However, the protection period under the new regulations will be extended until 2021 and despite the age of 65, Mr. Marian will be in the protection period until September 23, 2021.

Protective period - is there a fixed-term employee?

A special issue is the issue of termination of contracts for persons employed under a fixed-term contract, which expires before the employee reaches retirement age.

In the judgment of 27 July 2011 (file no. II PK 20/11), the Supreme Court ruled that "if it would not be possible to reach retirement age and obtain retirement rights under the current employment relationship, then Art. 39 of the Labor Code will not apply ”.

However, in a later judgment of 18 December 2014 (file ref. II PK 50/14.), The Supreme Court ruled that “employment protection under Art. 39 of the Code of Criminal Procedure prohibits the termination of a fixed-term employment contract concluded for the period expiring before the employee reaches the retirement age. The application of this regulation (employment protection) is conditioned by only two conditions. The first is reaching the pre-retirement age, which is 4 years shorter than the retirement age. The second is the period of employment which enables the person to obtain the right to a retirement pension upon reaching the retirement age ”.

The cited judgments show that the issue of termination of a fixed-term contract, the duration of which would end before the employee is entitled to a retirement pension, is problematic. On the other hand, in the case of a replacement contract, which after the change of regulations is one of the fixed-term contracts, the termination of the contract will take place after the time for which it was concluded, i.e. upon the return of the replaced employee.Such a contract can therefore be terminated even with an employee of the protected age.

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Are pre-retirement workers protected only against termination of employment?

As indicated by the Resolution of the Supreme Court of July 11, 1975 (reference number I PZP 19/75, OSNC 1976/4/76), employees covered by the protection period are protected against both the termination of their employment contract and a change in terms of employment and remuneration (e.g. by changing the working time or receiving a functional bonus).

The only exception is when the workplace introduces new remuneration rules for all employees or for all employees belonging to the professional group to which the protected employee belongs - in this case, changes to the terms of employment or remuneration may be introduced.

Also, in a situation where an employee loses the ability to perform the current work (which will be confirmed by a medical certificate) or loses the rights necessary to perform work through no fault of his own, he will be able to be dismissed during the protection period.

As stated by the Supreme Court in its judgment of May 11, 2016 (file reference number I PK 151/15), “from the linguistic interpretation of Art. 43 of the Code of Criminal Procedure, it follows that the exclusion of pre-retirement protection applies only to the introduction of new principles of remuneration. Therefore, it does not cover other terms of the employment contract. Therefore, the courts of both instances correctly accepted that pursuant to Art. 43 of the Code of Criminal Procedure, an employer may not terminate an employee covered by pre-retirement protection in the part covering working time standards, as the hypothesis of this provision refers to a change in the principles of remuneration ”.

When does pre-retirement protection not apply?

Pension protection does not apply in the following cases:

  • termination of an employment contract without notice due to the employee's fault (Article 52 of the Labor Code) in a situation where the employee commits a serious breach of basic employee duties, during the term of the employment contract, he / she commits a crime which prevents him / her from continuing to be employed in the position held, if the offense is is obvious or has been confirmed by a final judgment, or by his own fault he loses the rights necessary to perform work in the position held;
  • termination of the contract by mutual agreement (Article 30 of the Labor Code);
  • in a situation where there are grounds for terminating an employment contract without notice without his / her fault, e.g. when:

- the employee's inability to work due to illness lasts longer than 3 months - when the employee has been employed by a given employer for less than 6 months or longer than the total period of receiving remuneration and allowance on this account

- the employee received a rehabilitation benefit for the first 3 months - when the employee was employed by the employer for at least 6 months or if the inability to work was caused by an accident at work or an occupational disease, or in the event of the employee's justified absence for reasons other than illness, and lasting longer than one month (Art. 53 of the Labor Code);

  • in the event of bankruptcy and liquidation of the employer;
  • in a situation where the employee has obtained the right to a pension for total incapacity for work;
  • performance of work based on a civil law contract - contract of mandate, contract for specific work.

When should the employee terminate the contract in order not to be exposed to the consequences of not being protected against dismissal?

The employer's declaration of intent regarding the termination of the employment contract must reach the employee before the protection period begins. The notice period may end after the employee is covered by the protection period. In this case, the key issue is when the notice is given. The letter cannot be delivered after this date. This is stated in the judgment of the Supreme Court of 6 December 2005 (reference number III PK 94/05):

"The protection of the durability of the employment relationship of an employee in the pre-retirement age consists in prohibiting the employer from submitting a termination of the contract within a specified period, and not prohibiting the effect of the termination (i.e. termination of the employment relationship) submitted before the beginning of the protection period. In other words, Art. 39 of the Code of Criminal Procedure does not prohibit the termination of an employment contract by the employer before the beginning of the protection period, even if the termination took place during this period ”.