Employer's obligations regarding the issuance of employment certificates

What procedures and deadlines related to the issuance of employment certificates must employers adhere to?

There is no need to explain what an employment certificate is. Anyone in the labour market knows this is a document every employee receives from the employer on terminating the employment. It confirms the essential circumstances of the job.

What exactly are the employer’s obligations in respect of the employment certificate? The respective regulations are subject to significant changes every few years. The regulations are found in the Labour Code (Art. 97-99) and in the Regulation of the Minister of Family, Labour and Social Policy of 30 December 2019 on employment certificates (consolidated text Journal of Laws of 2020, item 1862, as amended).

Two issuing modes

The current law provides for two modes of issuing the employment certificate. One follows the termination of work (ex officio), while the other is at the employee’s request.

The first method happens when employment expires or terminates and is not continued with a new contract. In such a case, the employer is obliged to issue an employment certificate without an application or any initiative from the employee. The obligation is only waived when the employer intends to establish another employment relationship with the employee within seven days from the termination or expiry of the current one. The seven-day deadline regards the establishment of the employment relationship. It should be noted that it is not equivalent to the employment contract date. The employment relationship begins on the date stipulated in the contract as the employment starting date (Art. 26 of the Labour Code).

The employment certificate following the termination or expiry should be issued and handed in on the last day of the employment relationship. It can be issued to the employee or their authorised representative. The authorisation can be granted in writing or electronically. If the certificate cannot be issued on the last day of the employment relationship for objective reasons, the employer will have additional seven days to mail the certificate or deliver it in any other way (e.g. by a delegated employee or using a courier service).

Different rules apply in the case of the employee’s death. The employment certificate drawn up then is included in the employee’s personal file. It can only be issued upon a request from an authorised individual, namely a spouse or another person entitled to apply for family allowance. If no such person exists, the employee’s heir may request the certificate.

Employment period in the certificate

The employment certificate issued at the termination covers all the employment periods for which no certificate has been issued. Thus, it can cover a period of several employment contracts unless the employee requests one during the employment period.

In a situation when one employment contract ends and is followed by another, the employer does not issue the employment certificate ex officio. Yet, they may be obliged to do so by a request from the employer. It can be submitted in writing or electronically at any moment (thus not necessarily immediately after the contract’s end) and cover the previous employment period (the recently terminated contract) or all employment periods for which no certificate has been issued yet. The application is binding for the employer. They must issue the employment certificate within seven days from the application date and not ask the employee about its purpose.

The issuance of the employment certificate cannot be made dependent on prior settlement of the employee with the employer. In particular, the employer must not suspend the certificate’s issuance until the employee has accounted for the company property or any down payments.

Content of the certificate and legal changes

The document’s content is stipulated in detail. It should include information on the employment period, type of job, positions occupied, termination mode or circumstances for the expiry and any other information necessary to establish employee entitlements and those under social security. Also, the employment certificate must (compulsorily) include information on remuneration seizure per the enforcement regulations, if any. Upon the employee’s request, the certificate should also present information on salary/wage amounts and components and any qualifications gained.

The scope of information necessary to establish employee and social security entitlements to be disclosed in the employment certificate results from the Regulation on the employment certificate. It should be noted that following last year’s amendments to the Labour Code, the catalogue of information was extended by e.g. the number of days of occasional remote work in the termination year or information on the employee’s use of leave from work per Art. 148¹ §1 of the Labour Code (the so-called force majeure leave).

The catalogue of information is closed. That means the employer must not include their opinion on the employee (even positive ones) or any annotations that do not directly originate from the Regulation.

Employment certificate correction

If the employee finds the information in the employment certificate incorrect, they may, within 14 days from its collection, request the employer to correct it.

The employer shall have 7 days to review the ap plication and notify the employee. Only when the application to correct is denied can the employee refer the case to the labour court.

Special rules to amend the employment certificate regard cases where the employee challenges the termination method before the court and wins the case or a settlement is entered into. Then, depending on the disputed issue, upon the employee’s request, the employer shall either supplement the original employment certificate with additional information on the court decision issued (e.g. if the employee is restored to work or granted compensation for illegal termination of the employment contract) or issue a new employment certificate to the employee (if the dispute regarded termination by the employer without notice period due to the employee’s fault or if the litigation ended with a settlement which required a new employment certificate to be issued).

Fine for failure to issue document

It should be remembered that if the employer fails to issue the employment certificate to the employee, the latter may address the labour court, requesting that the employer be obligated to issue the employment certificate. Failure to issue the employment certificate is also misconduct, which can be penalised with a fine.

Notwithstanding the aforementioned, the employee may file a case to the court requesting redressing the damage incurred due to failure to issue the employment certificate in a timely manner or issuing a defective one. They can request compensation equal to their salary for the time of being unemployed for that cause, yet a maximum of 6 weeks.

Author: Dr. Iwona Więckiewicz-Szabłowska, attorney-at-law, Head of Legal Support Department, CHUDZIK and PARTNERS Law and Taxes

This article comes from magazine:
FOCUS ON Business #15 March-April (2/2024)