Employment Relationship, Emergency Situations, Formal Models of ‘Emergency’ Labour Law - Outline of Main Issues

Abstract

The study presented in the paper is concerned with a formal (theoretical and legal) model of regulations dedicated to the normalisation of employment relationships in emergency situations (states). By an ‘emergency situation’ the authoress means ‘overall exceptional circumstances caused by special, rare events, unforeseen in an accepted time perspective, in which someone or something was (is) at a certain time’. Until the outbreak of Covid-19, the subject matter of legal regulation of employment relationships in connection with the occurrence of emergency situations has not been given much thought (in our legal circle). This is also relevant to emergencies other than epidemics (warfare, natural disasters, force majeure, etc.). Insofar as research has been conducted to date, it rather focused on substantive and legal aspects of the regulations implemented in connection with the occurrence of such events, while any broader reflection on their formal and legal model has not been conducted. For this reason, in this paper, the authoress has firstly advanced a thesis that a distinction needs to be made between substantive and formal and legal models for the regulation of employment relationships in emergency situations, and secondly an attempt has been made to answer the question of which formal models can be distinguished in this context, what criteria should be used in this endeavour and how, on this basis, the distinguished models should be assessed. The authoress puts forward a thesis that formal models of ‘emergency’ labour law are closely linked to the concern to uphold the elementary democratic standards which should be respected by the law regardless of whether it relates to ‘ordinary’ or extraordinary situations. The research is primarily based on an analytical and linguistic, analytical and logical, dogmatic and legal, and descriptive method. It is conducted mainly on the example of the regulations of the Polish law and the decision of the Polish legislator taken in connection with the Covid-19 outbreak in relation to the method for the regulation of employment relationships during the period covered by it. However, the context of international (convention) regulations is also referred to. The authoress proposes to distinguish three basic formal models for the regulation of employment relationships in emergency situations: the permanent model, the mixed model and the ad hoc model. She concludes that, taking into account both the need for a relative flexibility in legal regulation and the need to maintain the elementary standards of a democratic state of law (primarily a guarantee that the applied legal solutions can be subjected to social discussion and dialogue between social partners), the mixed model should be considered as the most optimal. Keywords: Formal model of ‘emergency’ law; Emergency state; Emergency situation; ‘Emergency’ labour law; Employer’s risk