Our reader Maciej writes: “The employer purchased a private medical service package for us. We were informed about this by e-mail. The boss also informed us that an advance payment for income tax would be deducted from our salaries, for additional benefits, in the amount of a few zlotys per month. The problem is that he assumed that each employee would want to be included in the package. He therefore didn’t get our consent to be included in the package or to make the deductions from our remuneration”.

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Edited by: Piotr Pieńkosz (DGP)

The legal basis

Article 229 of the Labour Code of 26 June 1974 (Journal of Laws of 2014, item 1502 as amended). Article 1 par. 2 and Article 4 item 1 of the Act on the Occupational Medicine Service of 27 June 1997 (Journal of Laws of 2014, item 1184). Article 12 par. 1 of the Act on Personal Income Tax of 26 July 1991 (Journal of Laws of 2012, item 361 as amended).

EXPERT OPINION

Marta Ignasiak, tax consultant at FKA Furtek Komosa Aleksandrowicz:

It is not absolutely clear from the question whether, in the reader’s company, the medical package purchased was offered by a private health care establishment or was rather health insurance proposed by an insurance company, or whether this was a product having an individual or rather a group character. In principle, insurance products require consent by interested parties and for their data to be provided, although in such a case too various approaches are possible (e.g. group insurance). Considering that the employer did not get the consent of particular employees and did not collect any precise data about their state of health, we should assume that it probably decided on a group product being offered by a medical establishment. However, this does not mean that an employee who is not interested in the package has to make use of it and cannot resign from it. In my assessment, the employee has the right not to want to be covered by insurance, even if the agreement concluded by the employer concerns the group of all persons employed. In that case the employee should let the employer know about this, and the employer should inform the contracting party about reducing the number of people entitled to make use of the package.

At the same time, when assessing the employee’s actions connected with collecting tax on the “benefit” made available to the employee, the judicial decisions of administrative courts should be borne in mind. On the one hand, in the Supreme Administrative Court resolution of 24 May 2010 (case ref. no. II FPS 1/10), it was accepted that such a benefit is not only a specific medical service which an employee can obtain under that package, but also the very possibility of making use of it. In principle, therefore, tax should be collected in connection with the package being made available to the employee. On the other hand, in the Constitutional Tribunal’s ruling of 8 July 2014 (case ref. no. K 7/13), it was explained that benefits received from an employer are only subject to taxation if the employee has voluntarily consented to make use of them, if they are fulfilled in the employee’s interests, and if they provide notable advantages for him. In connection with this, in such cases the employer should not automatically collect tax, but should note that some employees hold private medical insurance or are insured with other family members, and that therefore accommodating them by force does not constitute a benefit subject to taxation for them. For that reason I believe that the employer, when deciding on a group medical package, should have obtained the consent of the employees interested.