Some reflections on the employer’s right to suspend the pursuit of economic activity

Janusz Wiśniewski

Uniwersytet Kazimierza Wielkiego w Bydgoszczy
http://orcid.org/0000-0002-7795-3868

Abstract

The paper discusses the employer’s right to suspend the pursuit of their economic activity by taking into account applicable provisions outlined in the Act of 6 March 2018: Business Entities Law. So far this issue has been closely analysed neither in labour law literature nor in economic law scholarly writings. For this reason, it seemed appropriate to attempt to establish to what extent mechanisms contained in the mentioned Act make possible a rational exercise of the right to suspend the pursuit of economic activity by an employer.The analysis has shown that Article 22 of the Business Entities Law does not have a quality of completeness. De lege lata it seems therefore reasonable to assume that to matters not covered by the provision in question rules of the Labour Code regulating leaves connected to parenthood should apply. In particular, these matters include issues related to rights and duties of an employee and an employer that come into play in the case where an employee finishes taking advantage of a leave related to parenthood or in the case where an employee applies to combine the parental leave or the leave for raising a child with carrying out a job for an employer who has granted such leave. A different interpretation of Article 22 of the Law of Business Entities would cause that due to its general character it could become a dysfunctional factor in applying the mechanism of suspension of economic activity in practice. In my opinion, a different interpretation would also result in the breach of the principle of equal treatment of employers.Furthermore, it seems appropriate to consider the subjective scope of Article 22 para. 2 of the act: Business Entities Law. I am of the view that in its subjective dimension the discussed provision in principle refers to employees that under Article 7 para. 1, sentence 2 of the act in question have been awarded the status of a micro employer.   It should also be noted that the mechanism of suspension of economic activity directly serves the interests of the employer, although it contains some instruments of the protection of the interests of the employee. The said protection results in particular from Article 22 para. 2, sentence 2 of the act: Business Entity Law which provides that where an employee finishes taking advantage of leaves or submits an application for combining the parental leave with carrying out a job for an employer who has granted such leave, he or she is entitled to receive remuneration as in case of a downtime, determined in the provisions of the Labour Code. until the termination of the suspension of economic activity.

Keywords:

entrepreneur, employer, economic activity, suspension of the pursuit of economic activity, leaves related to parenthood, downtime, remuneration for downtime, sickness benefit