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Managing human resources through the pandemic

Terminating employment during the pandemic

By Karolina Kanclerz and Julita Kołodziejska, PCS Paruch Chruściel Schiffter | Littler Global
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Can you terminate an employment contract online? Coronavirus has been our new reality for eight months now, and many of us have largely transitioned to remote working. It seems that many aspects of the work we do, as well as our HR tasks, do not necessarily have to be done on-site with physical participation from both parties. But what about firing employees?

It has to be in writing – but what does it mean exactly?

An employer does not have to physically meet an employee to hand over a termination notice. Yet there are certain formal requirements which such notice must satisfy.  Above all, it needs to be submitted in writing, that is, it must include a handwritten signature. Neither sending an SMS, an email or a message via a messaging app, nor having an online conversation with an employee using popular platforms, will fulfil the requirements set out in the Polish labour code. A scan of a correctly signed notice of termination attached to the email will not do either.

Dismissing an employee remotely will require sending the employee an email with the notice signed with a secure qualified electronic signature, by a person authorised to represent the employer. A trusted profile on the ePUAP platform will not suffice, as the trusted profile does not meet the electronic signature requirements. A termination notice may also be sent to the employee by post, courier or messenger.

Notably, under Polish law, there is an implicit principle of 'effective statements' made by the employer. This means that even though a notice of termination does not fulfil the requirements set out in the labour code – it was sent by SMS, e-mail or expressed verbally, or did not include valid reasons for the termination, it would still lead to termination of the employment contract. In such cases, however, employees could exercise their right to appeal such termination in court. An employee can demand compensation or reinstatement on the grounds that formal procedures were not followed by the employer.  If the employment contract was for an indefinite period, an employee can claim the above, should the notice fail to give valid reasons for termination.

How to run an online meeting with an employee to terminate their employment contract?

The employer should arrange an online meeting with the employee who is working remotely. This should preferably take place at least one hour after the employee has started work that day, to confirm that the employee has actually been working. It may prove useful for the employer to have some kind of evidence that the employee had been working that day, be it an email or records of meetings using online communication platforms. Once the connection is established it is a good idea to make sure that the employee has access to an email account. Upon receiving confirmation, the employer should immediately send an email with the termination of the employment contract. It is recommended to send an email with an automated confirmation of receipt. Regardless, it would be wise to ask the employee whether they received and opened the document.

But what if the employee denies it? The employer has no real tools to immediately check whether the employee has lied. But should it come to a dispute, an IT expert can verify whether the email actually reached the employee's inbox and was opened by the employee. Sending a notice of termination to the employee who can then read its contents is tantamount to a statement made by the employer that they wish to terminate the employment relationship. Therefore, it means that as soon as the employee can read the notice of termination, it is considered effectively submitted by the employer. And to be deemed as such, the email containing the notice of termination does not have to be opened in the presence of the employer. It is enough that the email had reached the employee, who could then read it.

However, we recommend that employers follow a couple of steps when terminating the employment contract online. Firstly, take a note of the conversation with the employee. Secondly, take a screenshot confirming that the document has been sent and a screenshot of the delivery report sent to your mailbox, confirming that the email has been delivered.

What about concluding an agreement?

It’s possible not only to terminate the employment contract online but also to conclude an agreement with the employee on mutual termination of the employment contract. This form of termination differs from termination by notice, in that submitting consistent declarations of intent by both the employer and the employee is necessary for the agreement of the parties to be effective. As a rule, in such cases no particular form is required. Even a simple verbal agreement with the employee reached over a telephone conversation or videoconference, or by e-mail exchange, is sufficient to terminate the employment relationship by mutual consent.

However, the matter becomes complicated if the employment contract requires the written form for its termination, without which it would be considered invalid.

In such a situation, terminating the employment contract by mutual agreement requires more steps, as the employee must send the signed copies back. Having the content of the agreement agreed on with the employee and the terms of termination accepted, it would be best to use the services of a professional courier company to complete the process.

What about employees in quarantine?

The regulations do not give a clear answer to this. However, in our opinion, it is acceptable to terminate employment contracts with employees who provide work while being in quarantine.

Under Article 41 of the Polish labour code, an employer cannot terminate an employment contract during an employee's justified absence from work. However, in the case of employees performing work in quarantine, it cannot be considered an absence as such. Therefore, we believe that there are no grounds for considering such an employee as being effectively covered by the statutory protection provided under the labour code.

Furthermore, according to social security regulations, the inability to work as a result of an illness is treated in the same way as the inability to work as a result of being subjected to mandatory quarantine. However, an employee is considered unable to work only if they are in quarantine and feel well but cannot perform work (if the nature of employee’s duties is such that the employee cannot work remotely, or the employee did not agree to work remotely). If the employee can and does work, there is no question of inability.

Terminating the employment contracts is feasible especially when it comes as part of the long-planned restructuring process in the workplace (though not only). When an employee is dismissed as part of a process for which the employer has already prepared (by selecting employees for dismissal), it is evident that the employee’s stay in quarantine had no bearing on the decision made. Therefore, the employee cannot reasonable claim that the termination of their employment contract is a case of unequal treatment in employment.

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