This verdict was recently issued by one of the courts in a case we conducted. During an inspection, the Border Guard revealed that several foreigners had been entrusted with work at a lower level than declared in the declarations on entrusting work/work permits. The Act on the Promotion of Employment and Labour Market Institutions recognises this as entrusting illegal work and as an offence.

The Border Guard’s practice – do not look deep

The Border Guard considered that the proxy obtaining the permits or making the statements on behalf of the employer was at fault. It did not matter that the proxy was not supervising the foreigners’ work afterwards, did not delegate tasks to them and did not account for their working time. All that mattered was that they signed documents legalising work that was later not performed in accordance with those documents.

Having a foreigner work at a lower level than declared is an offence punishable by a fine from PLN 1,000 to PLN 30,000 (Article 120(1) of the Act on Promotion of Employment and Labour Market Institutions).

The court’s position – the employer’s structure must be analysed

The court disagreed with the Border Guard’s approach. It ruled that the prosecutor must examine the organisational structure of the employer and determine who actually entrusts the foreigners with work. Entrusting work does not consist of mere employment, it involves commissioning specific tasks, accounting for work, issuing ongoing instructions, etc. A proxy who is only responsible for the initial employment of the foreigner, but does not subsequently direct the work, is not considered as entrusting the foreigner with work. Therefore, they cannot be liable for an offence under section 120(1) of the act.

This important position by the court can also be applied in other misdemeanour cases (e.g. under Articles 281-283 of the Labour Code). The authorities who have the right to impose fines and submit motions to the courts for punishment (Border Guard, PIP) usually accuse individuals at the top of the structure with whom they are in contact during inspections. In doing so, they forget that a fine or a request for punishment are not elements of an administrative procedure, but of a criminal one. Responsibility for an offence is personal and individual – it is not the responsibility of an official representative of the employer. It always has to be proven that a particular person’s behaviour bears the elements of an offence.

Find more articles in PRO HR May 2025.