Can a failure to provide disposable gloves or hand disinfectants by the employer constitute a basis for terminating the employment contract by the employee without notice?

By the Regulation of 19 April 2020, the Council of Ministers extended, until further notice, the employer’s obligation to ensure the following in the workplace:

1. disposable gloves or hand disinfectants for all employees (regardless of the basis of employment) and

2. distances between workstations of at least 1.5 m.

The question arises whether, in the event that the employer does not fulfil the obligations imposed by the Regulation, this gives the employee the basis for terminating the employment contract without notice.

Pursuant to Article 55 § 1¹ of the Labour Code, an employee may terminate the employment contract without notice if the employer has committed a grave violation of its basic obligations towards the employee.

It therefore follows from the above that in order for an employee to be able to terminate his or her employment contract with the employer without notice, the employer must violate the basic obligations of the employee, and the violation must be a serious one.

The Labour Code does not provide a legal definition of the basic obligations of an employer or establish an exhaustive list of them.

An exemplary list of the employer’s basic obligations is contained in Article 94 of the Labour Code. One of the obligations of the employer indicated in Article 94 of the Labour Code is to ensure safe and hygienic working conditions (Article 94 item 4 of the Labour Code). The clarification of the above mentioned obligation is provided in Article 207 of the Labour Code; § 1 indicates that the employer is responsible for the state of health and safety at work at the workplace. In turn, § 2 lists examples of the employer’s obligations, which are part of the employer’s general duty to protect the health and life of employees by ensuring safe and hygienic working conditions with appropriate use of scientific and technical achievements. These include, among others, the following:

• organising work in a way that ensures safe and hygienic working conditions (§ 2 item 1);
• ensuring observance of regulations and rules of health and safety at work in the workplace, issuing orders to remove deficiencies in this respect and controlling the execution of these orders (§ 2 item 2);
• responding to the needs regarding health and safety at work and adapting measures taken to improve the existing level of protection of health and life of employees, taking into account the changing conditions of work (§ 2 item 3).

The employer’s obligation to provide employees with disposable gloves or hand disinfectants and a distance of at least 1.5 m between workstations is covered by the list of employer’s obligations referred to in Article 207 § 2. These requirements were introduced precisely to protect the health and life of employees.

Therefore, the question that needs to be answered is whether failure to provide protective measures and the required distance is a grave violation of the employer’s basic obligations.

The factor of materiality and seriousness of a breach of a basic obligation of the employer must be assessed according to the circumstances of the specific case. As indicated in one of its rulings, the Supreme Court (judgement of 21 June 2017, II PK 198/16) stated that the assessment of the “severity” of a breach of an employer’s obligation by the employer depends, on the one hand, on the recurrence and persistence of the employer’s conduct and, on the other hand, on whether the breach constituted a real threat or harm to an important interest of the employee (the judgement concerned a breach of the obligation to pay remuneration on time; the prerequisites for assessing the severity of a breach of an obligation may also be helpful in the case discussed here). The Supreme Court in its verdict of 18 March 2014 (II PK 176/13) expressed a similar position stating that the qualification of a breach of the employer’s basic obligation as a grave violation is determined by the entire circumstances of the case, including, inter alia, the assessment of the frequency and recurrence and severity that the violation has on the employee’s interests (the case also concerned the late payment of remuneration).

Taking into account the above rulings, it can be concluded that in order for an employee to be able to terminate the employment contract with the employer without notice, referring to the employer’s obligation to provide employees with disposable gloves or hand disinfectants and a distance between workstations of at least 1.5 m, a violation of the above obligations by the employer cannot be a one-time violation, but must be repeated more often – it must be a long-term violation, as there is no doubt that the above mentioned infringement is a serious one which threatens the health and life of an employee.

Marta Strzecha-Bociąga, attorney-at-law