May an employer offer a foreigner a less favourable contract simply because they do not have Polish citizenship? The Supreme Court answered unequivocally: no. In its judgment of 7 November 2016 (III PK 11/16) it held that differentiating employment conditions on grounds of citizenship amounts to direct discrimination. Below we briefly explain the facts, what the breach consisted in and exactly what the Court ruled — and what it means for foreigners working in Poland.
1. The facts — a teacher without Polish citizenship
The case concerned a worker employed as a teacher under the provisions of the Teacher's Charter. From the findings of the lower courts — cited in the statement of reasons — it followed that the claimant was treated by the employer differently from other employees because of her lack of Polish citizenship. The difference concerned the type of employment contract concluded: it was citizenship, and not qualifications or the nature of the work, that determined the contract offered to the employee.
2. What the breach consisted in — citizenship as a prohibited criterion
The Labour Code lists among the prohibited criteria of differentiation, among others, nationality (Article 113 and Article 183a § 1 of the Labour Code). "Citizenship" does not appear expressly in this catalogue, and the concepts of nationality and citizenship are not identical. What is crucial, however, is that the catalogue of discriminatory criteria in the Labour Code is open. This means that other grounds not expressly listed may also be prohibited — if they are legally impermissible and highly reprehensible.
The Supreme Court further indicated that different treatment on grounds of citizenship is not justified by Article 5(9) of the Act of 3 December 2010 on the implementation of certain EU provisions on equal treatment. Under Article 2(2) of that Act, its Chapters 1 and 2 do not apply to employees — so employment relations are subject to the full guarantees of the Labour Code.
3. What the Supreme Court ruled
The Supreme Court held that, in the circumstances of this case, citizenship cannot justify differentiating an employee's situation — in particular, it cannot determine the type of employment contract concluded. Since the catalogue of discriminatory criteria is open, in principle the criterion of citizenship may be treated as an impermissible criterion of a directly discriminatory nature. The principle of non-discrimination covers all stages of the employment relationship — including the choice of the type of contract.
A finding of discriminatory conduct by the employer justifies the employee's claim for the compensation provided for in Article 183d of the Labour Code. Here the precondition of the employer's liability is the mere breach of the principle of equal treatment (the unlawfulness of the conduct) — it is not necessary to prove fault, even in the form of the slightest negligence.
4. What it means for foreigners and employers — risk assessment
For a foreigner legally employed in Poland, the judgment is an important confirmation that worse employment conditions motivated by citizenship may form the basis of a compensation claim (Article 183d of the Labour Code), with the minimum amount being the minimum wage for work. It must be remembered, however, that the judgment was delivered against a specific set of facts — the Court reserved that an assessment "in principle" and "in the circumstances of the present case" does not automatically prejudge every case of differentiation. If an employer relies on a special provision permitting a departure, the situation may look different.
For employers, this carries a practical warning: differentiating the type of contract, remuneration or other conditions solely on the basis of citizenship exposes them to liability, regardless of whether they acted deliberately. It is safer to base HR decisions on substantive criteria (qualifications, seniority, the nature of the work) and to introduce departures only where the statute clearly permits it.
Assessing whether discrimination occurred in a given case and what claims are available requires an analysis of documents (the contract, employment conditions, residence status and permits). In case of doubt, it is worth consulting a lawyer before taking steps against the employer — also so as not to jeopardise the residence status linked to the employment.
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Book a free consultationLegal notice: this article is for information purposes only and is our own commentary on the ruling — it is neither legal advice nor a reprint. Legal status: July 2026 (Labour Code: Articles 113, 183a § 1, 183d; Constitution of the Republic of Poland: Articles 32 and 37(2); Act of 3 December 2010 implementing certain EU provisions on equal treatment). Every case is different — consult a lawyer before making a decision. Data controller: Dariusz Włodarczyk Kancelaria TRC.
Sources: judgment of the Supreme Court of 7 November 2016, ref. III PK 11/16; the Labour Code (Article 113, Article 183a § 1, Article 183d); the Constitution of the Republic of Poland (Article 32, Article 37(2)); the Act of 3 December 2010 on the implementation of certain EU provisions on equal treatment (consolidated text: Journal of Laws of 2016, item 1219 — Article 2(2), Article 5(9)). It is worth verifying the cited provisions and the theses of the judgment against the current text of the Act and in the official database of Supreme Court case law before taking action.