Obligation to rehire an employee terminated in a group layoff
Employers must deal with the consequences of group layoffs long after carrying them out. Their freedom to hire new workers in the future is limited, as they must first rehire staff terminated in the group layoff.
Polish employers’ obligation to rehire laid-off staff arises under Art. 9 of the Group Layoffs Act (the Act on Specific Rules for Terminating Employment for Reasons Not Attributable to Employees of 13 March 2003).
Under the literal wording of that provision, the duty to rehire terminated staff applies only to employers who terminated staff in group layoffs. In that case, it is irrelevant whether the termination occurred through unilateral notice by the employer or by agreement of the parties. Conversely, an employer has no obligation to rehire staff made redundant through an individual termination, even if the grounds for termination were not attributable to the employee.
However, the obligation to rehire staff terminated in group layoffs is not absolute, but arises only when the following conditions are met:
- The employee notified the employer of his or her intention to be rehired within one year after termination of employment.
- The employer is hiring workers within the same professional group.
- Less than 15 months has passed since the date of the former employee’s termination within the group layoff.
Intention to be rehired
The employer is required to rehire only employees who have declared the intention to be rehired.
According to the Supreme Court of Poland, such notification means any behaviour by the employee adequately demonstrating the desire to take up work again with the employer (judgment of 13 February 1997, Case I PKN 80/96). Thus even an oral statement by the employee is sufficient in itself, but for evidentiary reasons it is recommended that the employee declare such intention in writing, or for example by email.
It is essential for the employee to declare this intention within one year after termination of employment in the group layoff. This is a preclusive deadline and cannot be reinstated. This means that employees who did not declare their intention to be rehired within one year will have no claim against the employer to be rehired.
In this respect, declaration of the intention to return to work must occur before the employer hires staff within the employee’s professional group. An employee’s declaration of the intention to return to work at a time when the employer no longer has any vacant positions releases the employer from the obligation to rehire the employee under Art. 9 of the Group Layoffs Act.
The law does not require employers to notify their laid-off staff that they are conducting new recruitment. The employee must show the initiative and take action seeking to be rehired.
Hiring within the same group
The duty to rehire an employee arises only when the employer intends to hire workers in the same “professional group,” but this notion is not defined by the law.
Some light is shed on this notion by case law from the Supreme Court holding that the term “professional group” may not be interpreted narrowly to mean only hiring for the very same position. The court takes the view that “professional group” should be interpreted broadly to mean employment for similar types of duties, requiring similar professional training and qualification (judgment of 7 March 1997, Case I PKN 26/97).
No longer than 15 months
The obligation to rehire an employee released in a group layoff who has declared the intention to return to work expires 15 months after dissolution of the employment contract. As in the case of the one-year period for declaring the intention to return to work, the 15-month period is preclusive and cannot be reinstated.
Rehiring obligation and employee claims
If all the criteria set forth above are met, the employer is required to rehire the employee. In practice this means submitting a job offer to the employee.
But this does not mean that the employer must offer the employee the same terms as before. The employer has leeway with respect to the working conditions, including salary and full- or part-time status. However, the terms offered by the employer must not violate mandatory provisions of law, including provisions on equal treatment.
If the number of positions offered by the employer is smaller than the number of employees who have announced their willingness to be rehired, the employer may choose to rehire the employees with the best qualifications and experience for the given position.
An employee who is not offered an employment contract when required under these rules is entitled to pursue a claim for damages under Civil Code Art. 471 in connection with Labour Code Art. 300. However, the employer is only liable for loss causally linked with the refusal to rehire the employee. If the employee contributed to the occurrence or extent of the loss, the employer’s duty to make up the loss will be mitigated accordingly.
Agnieszka Godusławska, adwokat, Employment practice, Wardyński & Partners