The Social Insurance Institution (ZUS) has recently become particularly interested in the employment of pregnant women or women who are just before pregnancy.

The Social Insurance Institution (ZUS) often assesses employment contracts concluded with pregnant women or with women just before pregnancy as having been concluded for convenience. However, the ostensible nature of the contract must result from the state of consciousness of the employer and the employee. Questioning the contracts only because they were concluded with a pregnant employee is not acceptable. A realistically performed contract concluded with a pregnant employee should not be considered as ostensible for the mere fact of concluding such a contract with a pregnant employee or in connection with her subsequent receipt of insurance benefits.

The Social Insurance Institution (ZUS) also challenges the remuneration under employment contracts of pregnant women, claiming that it is too high and as such incompatible with the principles of social coexistence. As a consequence, after giving birth, ZUS refuses to pay the benefit in the amount on which contributions were previously collected. According to ZUS, a "fair" remuneration usually means the national average, and sometimes even only the minimum wage. It is doubtful whether ZUS has the right to such far-reaching interference in the freedom of shaping an employment contract. Unfortunately, the admissibility of the Social Insurance Institution's questioning of pregnant employees' remuneration is confirmed by the courts. The courts recognize the Social Insurance Institution's authority to examine not only the title of an employment contract itself, but also to question the provisions of an employment contract with respect to remuneration. 

However, in light of one of the recent judgments of the European Court of Human Rights the practice of the Social Insurance Institution to verify the authenticity of the employment of pregnant employees may be regarded as discrimination against women on the basis of sex.

Read more in the article by Łukasz Kuczkowski and Paulina Zawadzka-Filipczyk "Questioning the employment of a pregnant woman may constitute discrimination" for Dziennik Gazeta Prawna (article from the 29th of April 2021).