According to Art. 6 sec. 1 point 1 in connection with with art. 11 sec. 1, art. 12 sec. 1 and art. 13 point 1 of the Act of 13 October 1998 on the social insurance system, the employee is covered by compulsory retirement, disability, sickness and accident insurance, and this obligation arises from the date of establishing the relationship work until the termination of this relationship. Employees are reported to social insurance by the employer who is the contribution payer.
According to Art. 8 sec. 1 of the Act on the social insurance system, an employee is a person who is in an employment relationship – employed by an employer. While, art. 22 § 1 of the Labor Code provides that by establishing an employment relationship, the employee undertakes to perform work of a specific type for the employer and under his direction and at the place and time designated by the employer, and the employer to hire the employee for remuneration. However, even if all these indications are met and the employee is not able to prove the actual performance of work during pregnancy, it must be taken into account that ZUS will consider this employment contract as a fictitious employment contract.
ZUS benefits
If the employment contract was considered as a fictitious employment contract, it may not cover employee’s social insurance (article 83 § 1 of the Civil Code indicates that the declaration of intent made to the other party with its consent for appearances is invalid. Other legal action, the validity of the declaration is assessed according to the properties of this action). If the employment contract concluded by a woman during pregnancy is considered as a fictitious one, ZUS will refuse her the right to receive sickness benefit, and then maternity benefit.
Prerequisites for recognizing the contract as fictitious
In order to be able to conclude that a false contract was concluded at the time of signing the contract, both parties must know that the person specified in the contract as an employee will not perform the work and the employer will not use the services. This means that the parties assume in advance that they will not fulfil their rights and obligations under the contract (judgment of the Court of Appeal in Poznań of January 20, 2016, ref. Act III AUa 766/15).
Challenging the entitlement to social insurance of pregnant women by the body cannot be based solely on the grounds that the purpose of establishing an employment relationship is the will to obtain sickness benefit or maternity benefit in the future. The Administrative Court in Poznań, in its judgment of 5 December 2017, indicates that the ban on automatic refusal by the social insurance institution of social security benefits to women expecting a child solely because they take up employment during pregnancy is a guarantee of equal rights for all employees. The fact of being pregnant in the context of an apparent contract may only be relevant if the pregnancy, at the time of concluding the employment contract, clearly precludes the possibility of an employee from performing work (judgment of the Court of Appeal in Poznań of 5 December 2017, ref. / 16).
Whether the parties actually entered into an employment relationship is determined not by the formal conclusion of the employment contract, joining the insurance scheme and payment of the premium, but by the actual implementation of the elements that are characteristic of the employment relationship.
Strenuous, dangerous or harmful work
The list of work that is burdensome, dangerous or harmful to the health of pregnant women and breastfeeding women is included in the appendix to the regulation of the Council of Ministers of April 3, 2017.
The provisions of the above-mentioned regulations implement Council Directive 92/85 / EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers, workers who have recently given birth and workers who are breastfeeding. Regardless of the protection rules set out in the Regulation of the Council of Ministers, Directive 92/85 / EEC also introduces a total ban on employing pregnant workers for work, the assessment of which has shown the existence of a risk of exposure to factors and working conditions endangering health and safety, listed in Annex II, section A of the Directive. 92/85 / EEC (Article 6 (1) of Directive 92/85 / EEC).
