Pre-retirement protection and termination of employment in Poland

Polish labour law provides special protection to employees in certain life situations, including people who are approaching retirement age. Pre-retirement protection (ochrona przedemerytalna) is one of the most important mechanisms for stabilising the employment of older people, who often face difficulties on the labour market. Today's labour market favours youth and the ability to adapt quickly, which puts experienced employees in a difficult position when looking for a new job.

The rules on pre-retirement protection are intended to ensure stable employment for people who, after losing their job, could have considerable problems finding a new one. The legislator has precisely defined the circumstances in which the employment relationship with employees of pre-retirement age may be terminated, creating a legal system that protects employees' interests on the one hand and takes employers' needs into account on the other.

Basic rules of protection against notice

Article 39 of the Labour Code (Kodeks pracy) is the foundation of pre-retirement protection in Polish labour law. Under this provision, an employer may not give notice of termination to an employee who is no more than 4 years away from reaching retirement age, provided that their period of employment enables them to acquire the right to a pension on reaching that age.

Protection covers both employees on open-ended contracts and those on fixed-term contracts – Article 39 does not distinguish between types of employment contract. What matters is not only the employee's age, but also their length of service and the possibility of acquiring pension rights. In the general pension system (people born after 1948), the right to a pension depends, as a rule, on reaching the age of 60 (women) or 65 (men) (Article 24(1) of the Act on Pensions from the Social Insurance Fund (FUS), consolidated text: Journal of Laws (Dz.U.) 2025, item 1749); length of service matters, among other things, for the minimum pension guarantee (Article 87).

An important Supreme Court judgment of 6 December 2005 (case no. III PK 94/05) explains that the protection of the employment of an employee of pre-retirement age consists in a ban on the employer giving notice during the specified period, not a ban on notice given before the protected period began taking effect during that period.

This interpretation means that an employer may plan strategically the termination of contracts with employees who will soon reach pre-retirement age. If notice is given before the protected period begins, it will be effective even if the contract itself terminates during the protection.

Applying this rule in practice requires employers to monitor their employees' ages carefully and to plan any staff changes well in advance. At the same time, employees should be aware that approaching pre-retirement age does not automatically protect them against notice given earlier.

Special rules for fixed-term contracts

Fixed-term contracts are subject to different rules in the context of pre-retirement protection. The characteristic feature of such a contract is its duration, fixed in advance, and the end of that period naturally terminates the contract without either party having to give notice.

The expiry of the period for which a contract was concluded is not notice. Therefore, a fixed-term employment contract whose term ends before the employee reaches the retirement age that would give them the right to a pension terminates when that term ends (Article 30 § 1(4) of the Labour Code) – Article 39 of the Labour Code does not extend its duration. Another special case is terminating a contract before starting work, which we also cover on the blog.

The situation is different when such a contract is terminated with notice before its end. Since 22 February 2016, notice terminating a fixed-term contract has been given on the same rules as for an open-ended contract (Article 36 § 1 of the Labour Code), and Article 39 does not make the ban depend on whether the contract would last until the day the employee reaches retirement age. The employer therefore may not, during the protected period, give notice terminating a fixed-term contract even if it was concluded for a period shorter than until retirement age. All the more so, the employee is covered by pre-retirement protection if the fixed-term contract is to last beyond the time when the employee acquires the right to a pension.

Let us consider a practical example of how these rules apply:

Mr Janusz has been employed since 1 May 2024 under a fixed-term contract that is to last until 31 December 2027. On 10 November 2027 Mr Janusz will turn 65 and on that day will acquire the right to a pension. In this situation the employee is covered by pre-retirement protection, so the employer may not give him notice of termination, even though the contract was concluded for a fixed term.

This example shows how important it is to set the duration of the contract precisely in relation to the date on which the employee acquires pension rights. Employers must take these aspects into account at the stage of concluding contracts in order to avoid legal problems in the future.

Permitted ways of terminating the contract at pre-retirement age

A ban on giving notice is not the same as a ban on terminating the contract altogether. Pre-retirement protection does not apply to all methods of terminating an employment contract, leaving employers certain options in special circumstances.

The basic way of terminating a contract with an employee of pre-retirement age is termination by mutual agreement (porozumienie stron). This is a kind of agreement in which the parties to the employment relationship jointly decide to end it. If the employer initiates the agreement, the employee must consent to it, which means they cannot be forced to do so.

Termination without notice for health reasons

Under Article 53 of the Labour Code, the employer may terminate the employment contract without notice in certain health-related situations of the employee:

1. Short employment: Where the employee's incapacity for work due to illness lasts longer than 3 months and the employee has been employed by that employer for less than 6 months
2. Long employment: Where the incapacity lasts longer than the total period of receiving sick pay and sickness benefit and of receiving rehabilitation benefit for the first 3 months, and the employee has been employed for at least 6 months, or the incapacity was caused by an accident at work or an occupational disease
3. Other absences: In the event of the employee's justified absence from work for other reasons lasting longer than 1 month

Termination through the employee's fault

A contract with an employee of pre-retirement age may also be terminated in special situations caused by the employee's own fault. The Labour Code provides the following grounds:

• Serious breach of duties: Where the employee has seriously breached basic employee duties
• Crime: Where, during the employment contract, the employee committed a crime that makes it impossible to continue employing them in their position
• Loss of qualifications: Where, through their own fault, the employee has lost qualifications necessary to perform work in their position

These provisions are exceptional and require the employer to prove particularly carefully that the grounds justifying termination of the contract exist.

Exceptional cases of notice

Exceptionally, the employer may give notice terminating the employment contract to an employee of pre-retirement age in the following cases:

• Bankruptcy or liquidation: The declaration of bankruptcy or liquidation of the whole employer (Article 41¹ of the Labour Code)
• Total incapacity for work: The protected employee acquiring the right to a disability pension for total incapacity for work (Article 40 of the Labour Code)

Notice changing terms during the protected period

The provisions prohibiting notice terminating the employment contract outright also apply to notice changing the terms of employment (wypowiedzenie zmieniające). This means that it is not possible to give notice changing the terms of work or pay to an employee protected under Article 39 of the Labour Code.

Changing the terms of work or pay during the 4-year protected period before reaching retirement age is, as a rule, possible only by mutual agreement of the parties, which requires concurring declarations of intent by both parties to the employment contract. This means that the employee must voluntarily consent to the proposed changes.

Exceptions to the ban on notice changing terms

The law provides certain exceptions to the above ban on notice changing terms. The employer may give notice changing the terms of work or pay to an employee of pre-retirement age in the following situations (Article 43 of the Labour Code):

1. New pay rules: Where the notice has become necessary because of the introduction of new pay rules applying to all employees of the employer or to the group to which the employee belongs – payroll outsourcing can help implement them
2. Health reasons: Because of a loss of ability to perform the current work, confirmed by a medical certificate
3. Loss of qualifications: In the event of a loss of qualifications necessary to perform the work, not caused by the employee's fault

Apart from these cases and situations under the Collective Redundancies Act, notice changing terms is not permitted for an employee protected under Article 39.

Compensatory allowance

An employee whose pay has been reduced as a result of a change to the terms of work and pay under the Act on special rules for terminating employment relationships for reasons not related to employees is entitled to a compensatory allowance (dodatek wyrównawczy) – until the end of the period in which they would have enjoyed special protection (Article 5(6) of the Act).

The amount of the compensatory allowance is determined by the regulation of 29 May 1996 on how to determine pay during periods of not performing work and the pay used as the basis for calculating compensation, severance pay, compensatory allowances and other amounts provided for in the Labour Code (consolidated text: Dz.U. 2017, item 927). The allowance is the difference between the pay from the period before the transfer and the pay after the employee is transferred to other work.

Consequences of defective notice

Termination of a contract by the employer in breach of the law is defective, but remains effective until it is overturned by a court. To avoid the legal effects of such notice, an appeal must be filed with the labour court within 21 days of the day the letter giving notice was delivered (Article 264 § 1 of the Labour Code).

When appealing, an employee under pre-retirement protection has the right to request:

1. A declaration that the notice is ineffective – if the notice period has not yet expired
2. Reinstatement on the previous terms – if the notice period has already expired
3. Compensation from the employer – equal to pay for a period of 2 weeks to 3 months, but not less than pay for the notice period (Article 47¹ of the Labour Code)

Favourable procedural position

The procedural position of employees of pre-retirement age is much more favourable than that of employees covered by general protection. Under Article 45 § 3 of the Labour Code, the court must rule in accordance with the employee's claim, which means that it cannot refuse reinstatement as impossible or pointless if the notice was unlawful. The exception is where reinstatement is impossible because of the employer's bankruptcy or liquidation (Article 41¹) – in that case the court awards compensation.

If, as a result of a final judgment, the employee was reinstated and took up work, they are entitled to pay for the whole period of being out of work (Article 47 of the Labour Code). This rule is intended to fully compensate the employee for the damage suffered as a result of the employer's unlawful action.

Strategic workforce planning

To check whether an employee of pre-retirement age has the right skills, employers should first hire them on a probationary contract or a fixed-term contract of a few months. Such a contract will terminate when the period for which it was concluded ends, regardless of the protected period.

If the employee meets the requirements, the employer will be able to hire them for an indefinite or fixed term, bearing in mind the time and number limits on fixed-term contracts set out in the Labour Code.

Comparison table of termination methods

This table shows that pre-retirement protection does not mean it is completely impossible to terminate the contract; it is limited mainly to a ban on giving notice.

Practical tips for employers

Employers who employ people of pre-retirement age should take the following aspects into account:

• Carefully monitoring employees' ages and the dates on which they acquire pension rights
• Planning staff changes well in advance
• Using probationary periods before concluding open-ended contracts
• Documenting all breaches of employee duties
• Regularly checking that the qualifications required to perform the work are up to date
• Taking legal advice before deciding to terminate a contract

Frequently asked questions