Assigning different work to an employee without issuing an amending termination notice
The Labour Code enables an employer to assign work to an employee differing from the work described in the employment contract without formally amending the contract, but this does not mean that the employer has boundless discretion to change the employee’s working conditions.
The employer’s right to assign different work to an employee without formally amending the employment contract by agreement of the parties or by an amending termination notice is governed by Art. 42 §4 of the Polish Labour Code, but the current regulations do not specify the form in which such reassignments should be made. This means that it is permissible either in writing or orally, but for evidentiary purposes and to avoid any doubts as to the type and scope of work assigned to the employee, it is always recommended to do it in writing.
Assigning different work to an employee under Labour Code Art. 42 §4 is permissible in cases justified by the employer’s needs. This should be understood to mean objectively existing circumstances on the part of the employer that make it necessary or desirable to assign different work to the employee. Such needs could be justified, for example, by reorganisation, seasonal changes in the need for work of a particular type, or the need to make use of other qualifications of the employee than those needed at the position indicated in the employment contract. Significantly, the needs of the employer should be distinguished from the needs of the employee. Art. 42 §4 does not provide grounds to assign different work to the employee if the only justification is, for example, that the employee has become unable to perform his or her current duties, or due to circumstances related to the employee’s family situation.
Different work may be assigned to an employee under this provision for a period not exceeding a total of 3 months during the course of the calendar year (totalling up all such periods during the year). In practice, it is possible to assign different work to an employee for an uninterrupted period of up to 6 months (from October through December of one calendar year and then from January through March of the following year). Assigning work to the employee different from that identified in the employment contract for a longer period requires formal amendment of the employment contract through an amending termination notice or agreement of the parties.
Significantly, assigning different work to an employee than specified in the employment contract may not result in a reduction in the employee’s compensation (which should be understood to include all elements of compensation, not only base salary)—even if the new work is generally less well-paid under the internal pay rules in force at the workplace.
The new work assigned to the employee must also suit the employee’s qualifications. Under the established precedent, work suited to the employee’s qualifications is work that does not exceed such qualifications and in performance of which such qualifications are at least partially applied. The work assigned to the employee thus need not fully exploit the employee’s qualifications or in this sense be work at the same level as the employee’s usual work. But it cannot be the case that the new work does not make any use whatsoever, or only negligible use, of the employee’s qualifications. For example, the Supreme Court of Poland has held that assigning cleaning duties to a chemical technician, in which none of the employee’s professional qualifications are used, is a violation of Art. 42 §4 of the Labour Code. It could also be found to be a form of discrimination against the employee.
Labour Code Art. 42 §4 refers directly to assigning different work to an employee than provided for in the employment contract, and generally does not provide grounds for modifying any other terms of the employment contract. It was implied in one judgment of the Supreme Court that it is permissible under this provision to change the place where the employee works (as a result of assignment of different work), but this ruling has been criticised by commentators and following this approach in practice could be questioned.
Magdalena Świtajska, Employment Law Practice, Wardyński & Partners
