Temporary employment of foreigners in Poland – rules, limits, and agency responsibilities

Hiring foreign workers in Poland – what is temporary employment?

Because temporary employment differs from standard employment contracts in Poland, it is subject to separate legal regulations than other forms of employment defined in the Polish Labour Code , namely:

• a probationary employment contract,
• a fixed-term employment contract (including a substitute contract), which may be concluded for a maximum period of 33 months, and finally
• an indefinite-term employment contract.

For this reason, temporary work is sometimes referred to as non-standard or atypical employment (see A. Patulski, “Doctrinal Aspects of Temporary Employment (Selected Aspects),” [in:] On the Issues…, p. 84; D. Dörre-Kolasa, [in:] Labor and Social Security Law, ed. K.W. Baran, Warsaw 2015, p. 317).

The regulation of rules related to the provision of temporary work differently than in the Polish Labour Code means that, when employment is based on this form of contract, the provisions of the Polish Labour Code are modified. This applies, among other things, to the duration of temporary work, the obligations of the employee and the temporary employment agency, the notice periods for terminating a temporary employment contract, and the obligations imposed on the employee.

Regulations concerning employment based on a temporary employment contract are described in detail in the Polish Act of July 9, 2003, on the Employment of Temporary Workers. This Act regulates:

• the rules for the employment of temporary workers by an employer acting as a temporary employment agency, and
• the rules governing the assignment of these employees and individuals who are not employees of a temporary employment agency to perform temporary work for a user employer.

The provisions of the Polish Act define temporary work as the performance of tasks for a given user employer that are:

• of a seasonal, periodic, or ad hoc nature, or
• which the user employer’s own employees would be unable to perform in a timely manner, or
• which fall within the duties of an absent employee of the user employer.

Parties involved in temporary work in Poland

Unlike in the case of employment under the Polish Labour Code, three entities are involved in the execution of a temporary employment contract:

• the temporary employment agency, which is the actual employer, hires (commonly referred to as “leases”) the employee and assigns them to work for the user employer,
• the user employer, for whom the employee performs work, i.e., the entity that requests a temporary worker and then utilizes their services,
• the temporary worker, i.e., the person hired by the temporary employment agency to perform work, and in many cases a foreign national.

What are the obligations of the temporary employment agency and what are those of the user employer?

Hiring employees under a temporary employment contract is directly linked to the Polish Activities of a temporary employment agency, as the entity that “arranges” work for temporary employees. The direct employer of a temporary worker is therefore the temporary employment agency, which hires the worker to perform work for the agency’s client, that is, the company that has requested a specific worker.

Generally, the employment agency undertakes the following activities:

• verification and selection of potential candidates,
• conducting the recruitment process for positions designated by the employer bound by a contract with the temporary employment agency and the client,
• in the case where the temporary worker is a foreign national, legalizing their employment,
• concluding a temporary employment contract,
• paying wages,
• compliance with the 18-month employment limit within a 36-month period,
• maintaining the employee’s personnel file,
• handling HR and payroll matters, such as calculating vacation time, paying taxes, and remitting contributions due to the Social Insurance Institution,
• providing the employee with documents related to the termination of employment.

However, it should be noted that the Polish Act also specifies the obligations of the user-employer, who, in accordance with the Polish Act on the Employment of Temporary Workers, is required to:

• providing the temporary employee with work clothing, footwear, and personal protective equipment,
• providing beverages and preventive meals,
• conducting training on occupational safety and health (the same rules apply to employees hired under an employment contract or a temporary employment contract),
• determining the circumstances and causes of a workplace accident, if one occurs,
• conducting an occupational risk assessment and informing the employee of these risks.

What is the time limit for performing work under a temporary employment contract?

To answer this question, it is important to note that the law does not regulate the period during which a temporary employee may be employed by a temporary employment agency.

However, the regulations do specify the maximum permitted duration of employment with the same employer (referred to in the Polish Act as the “user employer”). Pursuant to Article 20 of the Polish Act, the employment limit is a maximum of 18 months within a 36-month period. This restriction also applies in cases where:

• the same employee is assigned to the same user employer, but by a different temporary employment agency,
• the same employee is assigned to the same user employer by the same temporary employment agency, but under a different form of employment (for example, a fixed-term employment contract in accordance with the Polish Labour Code or a contract for specific work),
• the same employee is assigned to the same user employer by the same temporary employment agency, but to perform different duties.

It therefore appears that both temporary employment agencies and employers should carefully verify the above limits to avoid liability for circumventing the regulations regarding the employment limit at a given user-employer. The Polish Act provides for criminal sanctions for violating these provisions, which apply to both parties. This stems from the fact that the legislature’s intent is to limit temporary employment and promote permanent employment, which is precisely the purpose of the maximum periods for employing a single temporary worker by a single user employer and the criminal sanctions.

What is the notice period for a temporary employment contract?

As noted above, a temporary employment contract offers greater flexibility than standard forms of employment governed by the Polish Labour Code. This is certainly an advantage for many employers. The termination of a temporary employment contract is also a matter that has been specifically regulated by the Polish Act.

As noted above, the basis for establishing an employment relationship between a temporary employment agency and a temporary worker is a fixed-term employment contract for a maximum of 18 months within a 36-month period. A temporary employment contract will bind the parties for a specified period, and therefore the contract will terminate upon the expiration of the term for which it was concluded. The end of the contract term must be specified by indicating a specific date (for example, March 10, 2023) or simply by specifying the duration of the contract (for example, the contract is concluded for a period of six months, starting on December 1, 2023).

However, the Polish Act provides for the possibility that the parties may stipulate in a temporary employment contract the early termination of such a contract by either party:

• with three days’ notice, if the employment contract was concluded for a period not exceeding 2 weeks,
• with one week’s notice, if the employment contract was concluded for a period longer than 2 weeks.

A practical issue arises regarding what happens when one or both parties to the contract, that is, the temporary employment agency and the employee wish to establish a longer notice period for the temporary employment contract, for example, a two-week period. Would this be in compliance with the provisions of the Polish Act?

An analysis of the provisions indicates that it is possible to introduce such a provision, provided that the temporary employee consents to the introduction of such a longer notice period and that such an arrangement is beneficial to them. The assessment of whether the given terms are more favorable to the employee is made at the time these terms are introduced, not at the time the employment relationship is terminated.

This view is confirmed by two Polish Supreme Court rulings:

• a ruling in which the Court held that the provisions of the Polish Labour Code regarding notice periods are mandatory only to the extent that they guarantee the employer and the employee the minimum time necessary to make appropriate adjustments to the situation of the workplace and the employee. However, they do not preclude the parties from agreeing, through appropriate arrangements, on longer notice periods that are more favorable to the employee (Polish Supreme Court ruling of August 17, 1977, case no. I PZ 30/77),
  
  
• a ruling in which the Court held that statutory notice periods are minimum requirements, provided that they may be extended within the limits set forth in Article 18 of the Polish Labour Code (Polish Supreme Court ruling of April 26, 2011, case no. II PK 302/10).

Who determines the pay of a temporary worker?

It is the user-employer (not the temporary employment agency) who determines the pay. The pay of a temporary worker, including a foreign national, must be comparable to the earnings of persons employed in the same position directly by the user-employer. The amount of pay is determined by the user-employer based on its internal pay regulations.

At the same time, the employer is required to inform the temporary employment agency in writing about the regulations regarding employee compensation in effect at their workplace and, upon request by the agency, make these documents available for review.

Is a temporary employee entitled to vacation leave?

The amount of vacation leave under a standard employment contract is 26 days (if the employee has more than 10 years of service) or 20 days (if the employee has less than 10 years of service). In the case of employment under a temporary employment contract, the amount of an employee’s vacation is fixed and independent of their length of service, it amounts to 2 days for each month worked, and thus 24 days per year. Vacation is therefore not proportional.

However, the law stipulates that the right to vacation leave is contingent upon the temporary worker remaining at the disposal of the user employer for at least one month. If a temporary worker does not take annual leave during the period of temporary employment, the temporary employment agency pays the temporary worker a cash equivalent in lieu of that leave or the unused portion thereof.

If a worker is hired by a temporary employment agency under a contract and assigned to several user employers for periods shorter than one month or that do not cover full months, then all such periods must be added together, regardless of their length and even if there was a break between them. The employee then becomes entitled to 2 days of annual leave on the day when the total number of days the temporary worker has worked for a single temporary employment agency reaches 30.

Temporary employment contract – here’s how we can help you

• If you run or plan to open a temporary employment agency – remember that you must fulfill a number of legal obligations to avoid liability and potential legal issues. If you would like us to prepare legal documentation compliant with all regulations that will allow you to run your business, if you are interested in ongoing legal support for your business, or if you simply have current questions you would like answered, please contact us. We ensure the optimization and legal compliance of the solutions we provide.
  
  
• If you are a business owner looking to use a temporary staffing agency to hire temporary workers, we can review and amend your contract with the agency to protect your legal interests. If, on the other hand, you have already entered into a contract and have doubts regarding its terms, or would like to terminate or modify it, we can also assist you.
  
  
• We also provide legal services related to Polish labour law in the broadest sense, including: employee outsourcing, hiring foreign nationals, preparing and reviewing employment documents, drafting and reviewing notices of termination of employment contracts and termination of employment contracts without notice, etc.