An employee who has been the victim of a violation of the principle of equal treatment in employment has the right to seek compensation under Article 18 3d of the Labor Code. According to Supreme Court case law, the sole basis for an employer's liability is unlawful conduct involving unequal treatment of an employee. It is not necessary to demonstrate damages or a causal link between the violation and its consequences – merely establishing a violation of the principle of equal treatment is sufficient.
Employer liability under Article 18 3d of the Labor Code is based on the principle of unlawfulness, which means that an employee must prove only the fact of unequal treatment, not the actual damage suffered. The Supreme Court has emphasized in numerous rulings that a claim for compensation under this provision covers both pecuniary and non-pecuniary losses. The Supreme Court's judgment of October 27, 2021 (ref. no. II PSKP 63/21, LEX no. 3275236) emphasized that an employee is entitled to compensation even if they have not suffered direct pecuniary loss.
The minimum amount of compensation may not be lower than the minimum wage in accordance with the Act of 10 October 2002 on the Minimum Wage (Journal of Laws 2024, item 1773). This was emphasized, among others, in the Supreme Court's judgment of 9 November 2022 (ref. no. I PSKP 98/21, Legalis no. 2924711), which noted that this compensation not only compensates for the loss, but also serves a preventive function, deterring employers from using discriminatory practices.
In cases involving compensation for unequal treatment, the burden of proof is reversed. This means that the employee must only demonstrate facts that substantiate discrimination, while the employer bears the burden of proving that their actions were objectively justified. This principle has been extensively discussed in the Supreme Court's case law, including in its judgments of 24 May 2005 (II PK 33/05, LEX no. 184961). The Supreme Court indicated that it is crucial to determine whether an objective criterion exists that could have constituted a basis for differentiating the situation of employees. If the employee provides sufficient evidence of discrimination, the employer must demonstrate that it was guided by legitimate considerations.
Compensation under Article 18 3d of the Labor Code should not only compensate the injured employee, but also serve a preventive and deterrent function. In its judgment of 7 January 2009 (ref. no. III PK 43/08, OSNP 2010/13–14, item 160), the Supreme Court emphasized that it should be effective, proportionate, and dissuasive. This means that courts should determine its amount in such a way that, on the one hand, it compensates for the actual loss and, on the other, it acts as a preventive measure, preventing similar violations in the future.
When determining the amount of compensation, courts should take into account:
- the nature and intensity of discrimination,
- consequences for the employee (both material and non-material, such as a sense of injustice or humiliation),
- the employer’s conduct after discovering the violation (whether he tried to repair the damage or, on the contrary, continued the discriminatory practices).
Compensation for a violation of the principle of equal treatment in employment is an important means of protecting employee rights. Its amount cannot be lower than the minimum wage, and its purpose is not only to compensate for damages but also to prevent further violations. Supreme Court case law clearly indicates that an employee does not need to demonstrate a specific loss—simply demonstrating unlawful conduct by the employer is sufficient. The reversed burden of proof makes it easier for employees to assert their rights, and the preventive function of compensation is intended to prevent future instances of discrimination in the workplace.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of February 12, 2025
author/editor of the series:
Be the first to receive our articles and legal alerts, straight to your inbox! Sign up for our newsletter by clicking the link or contact us at social@kglegal.pl to personalize your content.
