As of September 1, 2018, regulations amending the education system come into force, among other things, changing the rules for hiring teachers and teaching staff in kindergartens and schools. What are these changes and what do they mean for students with disorders on the autism spectrum?

As of September 1, 2018, according to Article 10a of the Teachers' Charter, a teacher - including an educator and other pedagogical staff (such as an educator, speech therapist), will only be able to be employed under an employment contract. This applies to kindergartens, schools, public and non-public institutions.  

It will be impossible to employ on a contract of mandate or other civil law contract. This will increase the rights of teachers, who will be able to enjoy many privileges (including the possibility of professional promotion, receiving allowances such as incentive pay, greater stability of employment), but at the same time it has its negative consequences. Taking on part-time teachers will entail an increase in the cost of employment, and salaries may decrease relative to the earnings offered with a contract of employment. Many people will not be interested in this form of employment, as their salaries may decrease. There is also the problem of hiring therapists and specialists.

A contract of employment is the only possibility of employment when we talk about an employment relationship. An employment relationship exists only when strictly defined conditions are met, as indicated in Article 22 §1 of the Labor Code:

• The employee performs work of a certain type for and under the direction of the employer;
• This is work at a place and time designated by the employer;
• The employer undertakes to employ the employee for wages.

The typical work of a teacher meets all these conditions. A teacher, speech therapist or pedagogue employed in a school performs activities in a designated position, being subordinate to the employer - the director of a kindergarten, school or other institution. In an employment relationship, the employer is entitled to give binding orders to the employee, so the teacher and other pedagogical employee is subordinate to the director. This involves both personal and organizational subordination - the employer is the organizer of work and decides where and at what times the work process will be carried out. It is the director who is responsible for the results of the work and the risks of its execution (economic, social, personal, technical). The issue of subordination is very important in this case.

One of the duties of the principal, listed in Article 68 of the Education Law, is to implement the recommendations of the special education certificate. These rulings have, among others, students with autism spectrum disorders. Schools do not always have enough space to set up rooms for therapy rooms, they do not have the means to do so. Some forms of therapy are very difficult to carry out at school, e.g. hippotherapy, hydrotherapy. It has become common practice to pay for therapy that takes place outside of school, with funds from subsidies for expenses related to the implementation of tasks arising from decisions on the need for special education and individual educational and therapeutic programs developed on their basis. Most often, a business person or an institution employing specialists would invoice the school. The new regulations raise doubts as to whether this will still be possible.

At the outset, it should be noted that principals were keen to implement the recommendations of special education evaluations, which is why they opted for the cheaper solution of paying for therapy conducted at other facilities or paying for therapists who run a sole proprietorship. However, the law did not require principals to cover the cost of therapy if it was the parents who decided that their child would have therapy outside of school. In many cases, when it came to covering the costs of such therapies with grant funds, it was the goodwill of the principals that determined this.

It should be noted that the amended regulations apply only to teachers, educators and teaching staff. Persons who do not have pedagogical qualifications are not subject to the requirement of employment under an employment contract. According to some legal interpretations, the requirement to employ a pedagogical employee, e.g. a speech therapist, therapist, under an employment contract is only possible if the work provided by this employee is in the nature of an employment relationship: hence the key issue of subordination to the principal. With this understanding of the regulations, when a school enters into a contract for services with another institution, it is still possible to pay for therapy with subsidies.  

Another doubt concerns sole proprietors. According to some lawyers, if such a person has a pedagogical background, he must be employed in a school on an employment contract. Other lawyers point out that if such a person is not subordinate to the employer, it is not necessary to conclude an employment contract with him. Subordination cannot be equated with supervision or observation of the activities performed.

However, many lawyers believe that because of how Article 10a is worded, regardless of whether teachers work for another employer or are self-employed, if they have pedagogical qualifications, they will have to be employed under an employment contract.

All of this boils down to practical problems: how will kindergartens, schools and institutions provide children with special education evaluations, including children with autism, with appropriate adjustments? How will Applied Behavior Analysis therapy take place when schools can't afford to properly adapt the room and purchase equipment? Many people also express concerns about hiring supervisors. However, supervisors do not teach students themselves, but supervise and support the work of teachers. Again, the supervisor's lack of subordination to the principal can be pointed out here.

Summarizing the above considerations, the employment of specialists from September 1, 2018 under a contract other than an employment contract will be possible if these people:

• They do not have pedagogical qualifications - they are not teachers within the meaning of the Teacher's Charter and other educational regulations;
• They do not perform work under conditions typical of an employment relationship, as defined in the Labor Code.

These are theoretical assumptions. The courts are the only institutions that interpret the law in a binding way. As a precautionary measure, principals may employ only on an employment contract, including those not covered by Article 10a of the Teachers' Charter. As long as the spending of subsidy funds to pay for therapy outside of school is not challenged, it is unclear whether it will be in compliance or not.

The legislation that was introduced was intended to ensure that teachers are able to exercise their labor rights under the Teacher's Charter and the Labor Code. Unfortunately, this is another change that will have negative consequences for children with disabilities, especially in non-public institutions. Kindergartens and schools will have to allocate additional funds for the implementation of recommendations from decisions on the need for special education. In non-public kindergartens and schools, this will involve an increase in fees or charging tuition, which in many cases was covered by subsidies. In the new state of the law, this will no longer be possible. It will also not be easy to find a specialist willing to be hired on a contract basis. As a result, non-public facilities may be less likely to accept children with special education evaluations.

Due to interpretation doubts, the JiM Foundation is calling on the Ministry of Education to clarify the regulations. It is necessary to ensure the possibility of employing specialists, based on civil law contracts and not on an employment contract. Otherwise, the implementation of the recommendations of the ruling on the need for special education is jeopardized. We hope that these regulations will be amended as soon as possible.  

Malgorzata Grobelna
Advocacy Representative of JiM Foundation

Legal basis:

Law of December 14, 2016. Education Law (i.e., Journal of Laws of 2018, item 966)

The Law of January 26, 1982 on the Teacher's Charter (i.e., Journal of Laws of 2018, item 967).

Act of June 26, 1974 Labor Code (i.e., Journal of Laws of 2018, item 917, 1000, 1076).