Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Poland (Ratification: 1961)

The Committee notes the observations of the Independent and Self-Governing Trade Union “Solidarnosc” received on 30 August 2021, and the Government’s response.

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. In its previous comment, the Committee noted that section 113 of the Labour Code and section 3(1) of the Equal Treatment Act, 2010, do not prohibit discrimination on all the grounds enumerated in Article 1(1)(a) and requested the Government to provide information on any progress made in this regard, for instance in the context of the envisaged elaboration of a new draft Labour Code. The Committee notes the indication by the Government that the draft of the new Labour Code developed by the Labour Law Codification Commission in 2018 did not receive the recognition of the social partners and that as a result its enactment did not appear to be feasible. The Committee also notes the Government’s explanation that section 113 of the Labour Code prohibits any discrimination for any reason and that, similarly, section 183a(1) of the Labour Code: (1) provides for the obligation to treat employees equally in terms of establishing and terminating an employment relationship, conditions of employment, promotion and access to training to improve professional qualifications; and also (2) uses the same open list of grounds for discrimination, explicitly mentioning sex, age, disability, race, religion, nationality, political opinion, union membership, ethnic origin, sexual orientation, employment for a definite or indefinite period of time, and full-time or part-time employment. The Committee therefore notes that the Labour Code does not explicitly refer to colour, national extraction (which differs from ethnic origin and nationality) or social origin, but contains an open list of prohibited discrimination grounds. With respect to the Equal Treatment Act, the Committee notes that the definition of direct (section 3(1)) and indirect discrimination (section 3(2)) and the prohibition of unequal treatment in employment and occupation (section 3(1) and (2)) cover explicitly only the following grounds: sex, race, ethnic origin, nationality, religion, denomination, beliefs, disability, age and sexual orientation. It therefore notes that the Equal Treatment Act omits the grounds of colour, political opinion, national extraction and social origin that are enumerated in Article 1(1)(a) of the Convention. It also notes the indication by the Government that, during the reporting period, the courts did not issue any rulings relating to discrimination on the basis of skin colour or social origin. The Committee therefore asks the Government to: (i) ensure that the Equal Treatment Act explicitly prohibits discrimination in employment and occupation based on at least all the grounds set out in Article 1(1)(a) of the Convention, by adding political opinion, colour, national extraction and social origin to the list of explicitly prohibited grounds; (ii) consider aligning the Equal Treatment Act with the provisions of the Labour Code in this regard, while also ensuring that the additional grounds already enumerated in the Labour Code and the Equal Treatment Act are maintained; (iii) consider the possibility, when revising the Labour Code in future, to explicitly cover the grounds of colour, national extraction and social origin, in order to avoid any legal uncertainty; and (iv) ensure that the prohibition of discrimination on the basis of colour, national extraction and social origin is implemented in practice, including with respect to Roma people (see paragraph below).

Discrimination based on sex. Sexual harassment. The Committee previously requested detailed information on the measures adopted to prevent and address all forms of sexual harassment, and the implementation in practice of the relevant provisions of the Labour Code. It notes that the Government refers to section 183a(6) and (7) of the Labour Code defining sexual harassment and protecting employees against retaliation. The Committee also notes the information provided by the Government on the number of complaints of sexual harassment filed with the National Labour Inspectorate, according to which: in both 2018 and 2019, 24 complaints were filed; in 2020, 15 were filed; and between January and June 2021, eight complaints were filed. In this regard, the Committee recalls that the absence of, or a low number, of complaints regarding sexual harassment does not necessarily indicate that this form of sex discrimination does not exist; rather, it is likely to reflect the lack of an appropriate legal framework, the lack of awareness, understanding and recognition of this form of sex discrimination among government officials, and workers and employers and their organizations, as well as the lack of access to or the inadequacy of complaints mechanisms and means of redress, or fear of reprisals (General Survey on the fundamental Conventions, 2012, paragraph 790). The Committee therefore asks the Government to: (i) provide information on any activities planned or effectively conducted to raise awareness on and prevent sexual harassment among employers and workers and their respective organizations, such as training activities or media campaigns; and (ii) continue providing information on the number of cases of sexual harassment handled by the National Labour Inspectorate and the courts and their outcome, including the compensation granted and penalties imposed.

Discrimination based on sexual orientation. The Committee notes the “Memorandum on the stigmatisation of LGBTI people in Poland” (CommDH (2020)27) issued by the Commissioner for Human Rights of the Council of Europe on 3 December 2020. Recalling that the Labour Code prohibits discrimination based on sexual orientation, the Committee asks the Government to provide information on: (i) the measures taken to combat discrimination against lesbian, gay, bisexual, trans and intersex (LGBTI) persons at all stages of employment, and to address prejudice and promote tolerance; and (ii) any cases of discrimination based on sexual orientation handled by the National Labour Inspectorate and the courts, indicating the compensation granted and the penalties imposed.

Articles 2 and 3. Equality of opportunity and treatment of men and women. The Committee previously requested the Government to provide information on the measures taken to address both horizontal and vertical segregation between men and women in the labour market, and gender stereotypes. The Committee takes note of the adoption of the National Action Programme for Equal Treatment for 2021–30 (NAPET 2021–30). It observes that one of the priorities enumerated in the NAPET 2021–30 is to support equal opportunities for women and men in the labour market. In particular, the NAPET 2021–30 stresses the importance of reducing occupational segregation and identifies the promotion of the participation of women in decision-making processes in enterprises, institutions, universities and non-governmental organizations as one of its objectives. The Committee also takes note of the statistical information provided by the Government on occupational groups, showing that in 2018 men remained over-represented in certain categories such as chief executives, senior officials and legislators, and science and engineering professionals. The Committee therefore asks the Government to provide detailed information, including statistical data, on the implementation and impact of the NAPET 2021–30, and of any other relevant measure adopted, on the horizontal and vertical segregation of men and women in the labour market, and more generally, on its impact on the promotion of equality of opportunity and treatment of men and women in employment and occupation.

Equality of opportunity and treatment irrespective of race, colour and national extraction. Roma people. The Committee previously asked the Government to ensure equality of opportunity and treatment of the Roma people in employment and occupation in practice, and in this context requested information on: (1) any measures adopted in the context of the Programme for the Integration of the Roma Community for 2014–2020 (PIRC 2014–20); and (2) statistical data on the participation of the Roma people and persons belonging to other minorities in education and the labour market, disaggregated by sex. The Committee takes note of the Government’s indication that an independent evaluation was conducted on the effectiveness of the activities of the PIRC 2014–20. It welcomes the Government’s indication that it adopted the new Programme of social civic integration of Roma in Poland for 2021–2030 (PSCIRP 2021–30) and that, despite the prospect of a post-pandemic crisis, the PSCIRP’s budget has been maintained. Education remains a priority of the PSCIRP, with a focus on secondary education and particular emphasis on vocational education. In this regard, the Government further reports on a number of activities undertaken to reduce the over-representation of Roma students in special schools from the level of about 17 per cent (2010 data) to about 10 per cent. Reducing this over-representation to a level comparable to that of the general population (approximately 3.5 per cent) remains one of the important objectives of the current strategy. With regard to access to employment, the Government reports that in the period 2017–20, under the above-mentioned programme, more than 1000 persons from the Roma community were employed, with 80 per cent of them under a permanent contract. Access to the labour market is also being addressed in the context of European Union structural funds with larger budgets than the ones allocated to the PIRC. The Committee also notes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) expresses concern at: (1) the persistence of structural discrimination against Roma; (2) the low attendance rates of Roma children in primary school, their high rates of high school dropout, their persistent over-representation in special schools and their under-representation in secondary and post-secondary education; (3) the extreme poverty and substandard living conditions faced by Roma in segregated neighbourhoods with no proper infrastructure and basic services, as well as threats of eviction; and (4) the high rates of unemployment among Roma and the large wage gap between Roma and the rest of society (CERD/C/POL/CO/22-24, 24 September 2019, paragraph 21). Noting this information, the Committee asks the Government to continue taking steps to implement the Programme of social civic integration of Roma in Poland 2021–2030 (PSCIRP) and adopt measures to effectively address discrimination against Roma people, including stereotypes and prejudice against them. It also asks the Government to provide detailed information on the implementation of the Programme in practice and its impact on the participation of the Roma people in education, vocational training and the labour market, and particularly on the reduction of the over-representation of Roma students in special schools.

The Committee notes that under the priority “work and social security” of the NAPET 2021–30, one of the objectives is to support groups exposed to discrimination in the labour market due to age, disability, race, nationality, ethnic origin, religion, belief, sexual orientation and family status (II.3). In this regard, the Committee welcomes the detailed statistics provided by the Government on the number of complaints reported to the National Labour Inspectorate of instances of discrimination based on race, ethnic origin and nationality. According to the data: (1) 15 cases were reported between 2018 and 2020 and 1 between 1 January 2021 and 30 June 2021 of non-compliance with the prohibition of discrimination by employment agencies and other related entities; (2) 31 cases were reported between 2018 and 2020, and 8 between 1 January 2021 and 30 June 2021 of discrimination in the creation or termination of employment; (3) 34 cases were reported between 2018 and 2020, and 5 between 1 January 2021 and 30 June 2021 of discrimination in the determination of pay or other terms or conditions of employment; and (4) 5 cases were reported between 2018 and 2021 of discrimination in promotion or other work-related benefits. Recalling that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all, the Committee asks the Government to provide information on any policies envisaged or adopted to address specifically such discrimination, and the results achieved.

The Committee is raising other matters in a request addressed directly to the Government.