[Poland] New Homeland Defence Act – employee and employer entitlements

On 23 April 2022, the new Homeland Defence Act came into force. It regulates the entitlements of employees who are not professional soldiers and are called up for service. The new regulations also define the scope of financial compensation for employers.

The Homeland Defence Act of 11 March 2022 replaced the existing legislation and introduced certain amendments to the Labour Code. The amendments clarify the wording of the articles concerning, among other things, the issue of calling for military trainings or for rotational territorial military service (OT) of persons remaining in employment. All solutions introduced by the new regulations are aimed at increasing the interest of citizens in performing military service. 

Unpaid leave for employee on military training

An employee called up for military training or called up for military service gains additional entitlements on this account. Firstly, an employee in an employment relationship and undergoing specialised military training of up to 11 months combined with the performance of duties in an official position is entitled to unpaid leave for the time of the training.

Unpaid leave shall also be granted to an employee called to perform territorial military service on a rotational basis, obviously as long as the service lasts. However, this leave is not due if an employee performs service on a one-off basis or on a day off.

Unpaid leave, as its name suggests, is a leave during which the employee does not retain the right to remuneration. All other rights arising from the employment relationship, apart from remuneration, are retained.

To receive unpaid leave, the employee needs to submit a request to his or her employer, but this does not apply to an immediate call-up. In such a case, information from the head of the military recruitment centre will suffice.

Protection against dismissal

An employee called up for service is protected against dismissal. Such an employee can only be terminated at his or her will, i.e. there shall be a desire for such termination on the employee’s part. The period of protection against dismissal runs from the date on which the employer is informed of the training start date, during the training, until the date on which the training ends, and for a period of 12 months following the end of the training.

If, on the other hand, the period of termination of the employment contract, irrespective of which party terminated the contract, expires after the date on which the employee is called up for service or military training, the termination shall be deemed ineffective unless the employee requests the termination of the contract.

The exception when an employer may terminate the employment contract with an employee called up for service or military training is in the following circumstances:

• employment based on a probationary period contract,
• employment based on a fixed-term contract of less than 12 months,
• bankruptcy of the company,
• the company goes into liquidation,
• termination of the contract is due to the fault of an employee.

In all these cases, the general rules on termination of employment apply.

Compensation for an employee called up for territorial military service

In addition, an employee called up for territorial military service is entitled to compensation in the amount of two weeks’ remuneration calculated according to the rules for determining the equivalent for annual leave. This pay is provided by an employer.

However, the aforementioned compensation under the provisions of the new Act is not due if one is reappointed to the same service.

Furthermore, what is important from the employee’s point of view, is the fact that the period of service is included in the period of employment – however, this does not apply to professional and basic military service.

For example, if an employee, within 30 days of his/her release from active military service, takes up employment with the same employer as before, the period of military service is included in the period of employment with that employer, with all rights arising from the employment relationship.

Financial compensation for employers

The Homeland Defence Act also provides for a financial compensation payment for an employer who employs an employee who is either a reserve soldier or who is a territorial protection (OT) soldier on rotational military service.

The compensation is payable to the employer for the days on which the employee was on military service.

The amount of the compensation shall be determined by the competent head of the military recruitment centre. This amount shall consist only of the amount compensating for the costs incurred by the employer, without taking into account the amounts of remuneration incurred by the employer for hiring under a fixed-term employment contract a new employee to replace an absent employee-soldier, or for entrusting this replacement to another employee previously employed by this employer, as well as the payment to the OT soldier of the due allowance.

The employer, in order to receive the payment, should send an appropriate form to the head of the military recruitment centre who has jurisdiction over the location of the employer. The request form for the payment, together with the documents confirming the costs incurred, should be submitted no later than 90 days following the date on which the reserve soldier or OT soldier was discharged from service.

The request for financial compensation should include:

• name of employer and registered office address
• place where the business is run;
• employer’s e-mail address;
• tax identification number (NIP);
• number of the employer’s bank account or the number of his/her account with a cooperative savings and credit union;
• information about the soldier, including name, PESEL number, address of residence, number of the called-up paper and appointing authority;
• information on the number of days taken into account for the calculation of costs;
• the type of costs included in the calculation.

Significantly, the amount of compensation for each day during which a soldier is on duty may not exceed 1/22 of two and a half times the average monthly remuneration in the business sector for the quarter immediately preceding the date of calling up for service.

Besides, if an employee is employed by more than one employer, the payment is due to all employers, in proportion to the costs incurred by them, but the amount of the payment to an individual employer for each day of service performed by the employee may not exceed the amount of 1/22 of two and a half times the average monthly remuneration.

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