There were many interesting rulings in HR law handed down in 2021.

The Supreme Court has held, among other things, that:

• Trade union consultations must be carried out in writing - that is, on a sheet of paper with a handwritten signature or on an electronic document signed with a qualified electronic signature. An e-mail does not meet this requirement (Supreme Court judgment of 21 January 2021, ref. no. III PSKP 2/21).
• In determining whether we are dealing with a collective dismissal, we must look both 30 days back and 30 days forward - that is, there can be no 30-day period in which employees are laid off in excess of the thresholds specified in the Act. The number of dismissals includes mutual agreements of the parties, if there are at least 5 of them during this period (Supreme Court judgment of 27 January 2021, ref. no. II PUNPP 1/21).
• Intentional wrongful dismissal generates a risk of additional compensation - that is, a reinstated employee may seek supplementary compensation over and above his or her unemployment remuneration. He or she must prove the employer's bad intentions in dismissing him or her, the damage, and that he or she suffered it as a result of the dismissal (Supreme Court judgment of 27 January 2021, ref. no. II PSKP 1/21).
• The employer is responsible for protecting the whistleblower's data - that is, the employer may entrust the internal investigation procedure (e.g. in a mobbing case) to a third party, but must enter into an agreement on entrusting the processing of personal data. Besides, in such investigation, we explain whether the mobbing took place, and we cannot assess the condition of the injured party's health (Supreme Court judgment of 4 February 2021, ref. no. II PSKP 7/21).
• It is the practice that decides what is included in the basis for calculating the benefit, not the wording of the regulations - that is, in order to exclude a given component from the basis for calculating the benefit, it is not enough to state that it is due for the period of illness, but it is important whether we actually pay it in practice. It may happen that we pay contributions on a given component, and yet it will not be included in the benefit (Supreme Court judgment of 4 March 2021, ref. no. II USKP 25/21).
• If the employment relationship is established, the employer will not be reimbursed for the funded contributions for the employee's portion - that is, if the court changes the classification of a civil-law contract to an employment contract and we pay social security contributions for the employee's portion, we cannot demand reimbursement from the employee. It is an exception when it was the employee who wanted the civil-law contract (judgment of 24 June 2021, ref. no. III PSKP 26/21).
• ZUS loop - i.e. when our employee under a civil-law contract is employed by another entity providing us with services with which the employee works, we pay the ZUS contribution on the compensation which the employee receives from the third party - this applies regardless of whether the employer simply pays the third party for the services or otherwise refinances the remuneration of its employees (resolution of 26 August 2021, ref. no. III UZP 6/21).
• We can make deductions from the compensation for the time of remaining unemployed - that is, only the benefits regulated in the remuneration section of the Labour Code (base salary, stand-by fee, sick pay, bonuses, amounts due for business trips, death benefit, and disability and pension benefit) are subject to the protection against deductions and the prohibition of waiver. Remuneration for the time of remaining unemployed is not a "salary", but a kind of compensation (Supreme Court judgment of 28 January 2021, ref. no. I PSKP 2/21).

Other equally important decisions:

• Whether or not stand-by time is working time is determined by the ability to freely manage time, the time limit set for responses and their average frequency - in other words, if the restrictions imposed on the employee objectively and very significantly affect his or her ability to freely manage his or her time, during that period, then all stand-by time will be working time. Even if the employee does not work at all during stand-by time (CJEU judgment of 9 March 2021, ref. no. C-344/19).
• Dismissal for social media activity not always justified - that is, a comprehensive assessment of such activity should be made each time: its harmfulness, reach, social impact, recognisability of the employee on social media, tone of the message and professional context. Moreover, liking does not carry the same weight as publishing or sharing (ECHR judgment of 15 June 2021, ref. no. 35786/19). 

Find more in the PRO HR March 2022.