Attachment of remuneration for work - can the bailiff take the allowance?
Seizure of remuneration for work by a bailiff often causes problems for employers. On the one hand, irregularities may be liable to a bailiff or a creditor, and on the other hand, an unjustified set-off may be considered an offense against the employee's rights, for which PIP may fine. Problems arise when the employee receives sickness, care or maternity benefits, and it is indicated during the occupation that it concerns remuneration for work. Does the employer have the right to transfer the benefit received by the employee to the bailiff? Read our article and find out the answer to this question.
Employer's obligations towards the bailiff
One of the most common forms of debt recovery carried out by court bailiffs is the attachment of remuneration for work. To this end, the bailiff sends a letter of attachment to the employer, citing a court judgment with an enforcement clause. The employer is obliged to provide the bailiff within 7 days with information about:
- the amount of remuneration received for the three months preceding the seizure;
- the amount and dates on which the attached wages will be transferred;
- about obstacles that prevent the remuneration from being transferred to the bailiff, for example, whether it has already been seized by another bailiff or another enforcement authority, e.g. ZUS or the Tax Office, together with the details of these authorities.
If the bailiff fails to inform the bailiff about the circumstances of the remuneration within a week, the person guilty of negligence is liable to a fine of PLN 5,000, which may be repeated in the event of further evasion of the information obligation, in accordance with Art. 886 § 1 of the Code of Civil Procedure. The employer is obliged to inform the bailiff within a week about the amount of remuneration received by the employee and the amounts transferred, or about any other enforcement authorities that have previously seized his remuneration.
Attachment of employee's salary - what does it mean in practice?
Most often in the title of a bailiff's seizure the phrase "Seizure of remuneration for work". What exactly is remuneration for work?
This issue is devoted to Section III of the Labor Code entitled "Remuneration for work and other benefits”.
Remuneration for work within the meaning of the Labor Code:
- is due for the work performed - for the time when the work is not performed, the employee retains the right to remuneration only if the provisions of the labor law so provide (Article 80 of the Labor Code);
- is an inalienable right of the employee - the employee may not waive the right to remuneration or transfer this right to another person (Art. 84 of the Labor Code);
- must be paid on a fixed date once a month - but not later than during the first 10 days of the following calendar month (Article 85 § 1 and 2 of the Labor Code);
- subject to enforcement on strictly defined terms - after deduction of social security contributions, personal income tax advances and contributions to the employee capital plan, within the meaning of the Act on Employee Capital Plans, if the employee has not resigned from making them - only the following receivables are deducted :
sums enforced under enforcement orders for the satisfaction of maintenance payments,
sums enforced under enforcement orders to cover debts other than maintenance payments,
cash advances granted to the employee,
the financial penalties provided for in Art. 108 of the Labor Code;
has a strictly defined limit of deductions - they can be made within the following limits:
in the event of the enforcement of maintenance payments - up to three-fifths of the remuneration,
in the event of enforcement of other receivables or withholding of cash advances - up to half of the remuneration;
has an amount free from deductions - in the amount of the minimum remuneration for work (from January 1, 2020 it is PLN 2600 gross), which is reduced in proportion to the working time.
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The legislator distinguishes, in the chapter titles and in the content of the provisions of the Labor Code, remuneration for work sensu stricto and benefits that are not remuneration for work.
Remuneration for work includes in particular:
- base salary,
- prizes from the company's prize fund,
- additional annual remuneration - the so-called thirteen,
- receivables due to participation in profit or balance sheet surplus.
In the jurisprudence of the Supreme Courts, there are also other benefits that are not directly remuneration for work, but are treated as such, for example:
- compensation for annual leave (e.g. in the judgment of the Supreme Court of June 11, 1980, I PR 43/80);
- jubilee award (e.g. in the judgment of the Supreme Court of 29 January 2007, II PK 181/06);
- severance pay for dismissal for reasons not related to the employee (e.g. in the judgment of the Supreme Court of November 14, 1996, I PKN 3/96);
- retirement and disability severance pay (e.g. in the judgment of the Supreme Court of February 14, 2002, I PKN 889/00).
Although these benefits are not remuneration for work, they are closely related to it, and their value depends on the length of service.
Such a relationship does not apply to sickness benefits, care benefits or maternity benefits.
As indicated in its judgment of 27 February 2018, the Provincial Administrative Court in Bydgoszcz (II SA / Bd 1181/17), the concept of remuneration does not include sickness benefit. According to the Court, this concept does not have a uniform, universally established scope of meaning. It is not another work-related benefit, which will be, for example, benefits received from an employer for remaining in an employment relationship, for example:
- guarantee payments, e.g. for the time when work is not performed;
- compensation payments, e.g. for diets, reimbursement of travel expenses;
- compensation benefits, e.g. compensation for unlawful termination of the contract, compensation due to shortened notice period;
- various severance payments.
As further indicated by the WSA,
„[s] t the field that the sickness benefit is not a salary can be strengthened by the jurisprudence based on the provisions of the act on personal income tax (Journal of Laws 2018.200). In the judgment of November 8, 2017, file ref. act I SA / Gd 1214/17 of the Provincial Administrative Court in Gdańsk stated that the sickness benefit does not fall within the concept of remuneration received under an employment contract, within the meaning of Art. 30 sec. 1 point 15 u.p.d.f. This benefit is paid to the employee due to being subject to social insurance and does not constitute income from employment, but income from other sources (Article 10 (1) (9).”.
Therefore, if during a bailiff's seizure it is indicated that it concerns remuneration for work, the employer should not provide the bailiff with benefits such as sickness, care, maternity benefits or, for example, rehabilitation benefits, which are granted to the employee after the benefit period has expired. They do not fall within the concept of remuneration for work, which, like e.g. benefits from the Company Social Benefits Fund, cannot be deducted without the appropriate title of seizure by a bailiff. Sickness, care and maternity benefits are not remuneration for work within the meaning of the Labor Code and the Income Tax Act, so in the case of seizure only remuneration for work cannot be transferred to the bailiff.
What should the employer do when an employee who has a bailiff's job receives benefits?
The employer should notify the bailiff of this fact and wait for a letter from him. Only when the bailiff sends a letter about the seizure of the claims from sickness, care or maternity benefits, the employer will be able to make a deduction from them. Let us remind you that deductions from benefits are made on completely different principles than those relating to remuneration for work. Certainly, the employer should not deduct receivables covered by bailiff seizure without the appropriate title, because pursuant to Art. 282 § 1 point 1 of the Labor Code, making groundless deductions is an offense against employee rights punishable by a fine of PLN 1,000 to PLN 30,000.