Personnel files: in Polish, in writing, and for 50 years
20.10.2011
employment
The Labour Code and other regulations require employers to maintain personnel files and other employment documentation, governing such specific issues as the language and longevity of the documentation.
Under the amended Polish Language Act dated 7 October 1999, employment documentation must generally be maintained in Polish. It is now permissible to prepare a parallel version in other languages, but if the employee is a Polish citizen the Polish version is controlling. In the case of employees who are foreigners, their documents may be maintained only in a foreign language so long as the employee speaks the language and requests that the documentation be prepared in that language, and the employer informs the employee of the right to have documents prepared in Polish. Failure to comply with these language requirements may be punished with a fine, imposed for example by a labour inspector.
But these rules do not apply to all written forms of communication with the employee or all documents that may be included in the personnel file or other employment documentation (subject to the requirement to use Polish also in tax and social insurance documentation), but only document indicated in the labour law (e.g. employment contracts and related agreements with the employee, internal regulations, employment certificates, termination notices and settlements, decisions imposing disciplinary sanctions, and the like). Thus there is nothing preventing a written instruction, for example, or an evaluation form, from being prepared only in a foreign language, provided that the employee speaks the language well enough to understand the document.
The Labour Code and other regulations do not directly specify the form in which personnel files and other employment documentation must be maintained, but because most employment-related legal instruments (e.g. contracts, settlements, terminations and the like) must be made in writing, it is clear that they may not be prepared and maintained only in virtual form—a hard copy is required. This is confirmed by the position of the National Labour Inspectorate dated 9 April 2010 (File No. GPP-87-4560-29/10/PE/R), under which the electronic version may only be an additional form for maintaining personnel files and other employment documentation—even for documents that are not required to be in writing in order to be valid or for evidentiary purposes.
The issue of the period for which personnel files, pay records and other employment documentation must be maintained is governed by Art. 51u of the Act on National Archival Resources and Archives dated 14 July 1983. However, this provision refers directly only to the situation where the employer enters liquidation or bankruptcy. In such case, the employer is required to indicate an entity in the business of maintaining such documentation, to which the records will be forwarded for further storage, along with the necessary funding to assure that the records are maintained through the end of the 50-year storage period.
The reference in this provision to “the time remaining until the end of the 50-year period for storage of personnel and pay records” has been interpreted (e.g. by the State Labour Inspectorate) to mean that in all cases, even apart from bankruptcy or liquidation of the employer, personnel files must be stored for the period of employment and thereafter for a further 50 years. The employer’s pay records must be maintained for 50 years after they are created, unless a shorter period is provided by specific regulations (e.g. tax or social insurance regulations).
If staff are taken over by another employer under Labour Code Art. 231, then the legal successor is required to provide all personnel files and other employment records concerning such staff to the new employer (§9 of the Regulation of the Minister of Labour and Social Policy dated 28 May 1996). The requirements concerning storage of such documents then pass to the new employer.
Magdalena Świtajska, Employment Law practice, Wardyński & Partners
