10.6092/issn.1561-8048/18084
The subject of this article is the algorithmic employee evaluation system at Amazon’s warehouses in Poland. A weekly performance review, the evaluation is a measure of productivity and quality, gathered in real time as warehouse associates scan barcodes throughout the working day. Evaluation results instruct on the employment status of individual workers, without any input from supervisors. The article probes the significance of the European General Data Protection Regulation (GDPR) for bolstering job security at workplaces like Amazon, where HR decisions are automated and based on the processing of work performance data. Article 22 of the GDPR lays down a prohibition for decision-making based solely on the automated processing of personal data. In turn, it establishes the right to human intervention, which might allow employees to avoid the adverse effects of an employee evaluation, if it did not ensure significant human input. Departing from a shop-floor level view of Amazon’s employee evaluation system that is reinforced by insight gained through litigation in Polish labour courts, this article argues that the process of evaluating workers is not a purely technical operation that can be consigned to algorithmic management. Employee evaluation must abide by certain legal criteria, which ultimately requires human discretion.
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Italian Labour Law e-Journal
Human Intervention
Automated Processing of Data on Work Performance and Employee Evaluation: A Case Study of Practices at Amazon Warehouses in Poland
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Piotr Krzyżaniak
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Automated Processing of Data on Work Performance and Employee Evaluation: A Case Study of Practices at Amazon Warehouses in Poland
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Automated Processing of Data on Work Performance and                                Italian Labour Law e-Journal
Employee Evaluation: A Case Study of Practices at Amazon                                   Issue 2, Vol. 16 (2023)
Warehouses in Poland                                                                             ISSN 1561-8048
Marta Rozmysłowicz                                                https://doi.org/10.6092/issn.1561-8048/18084
marta.rozmyslowicz@ozzip.pl
Piotr Krzyżaniak
piotr.krzyzaniak@ozzip.pl




    Automated Processing of Data on Work Performance
    and Employee Evaluation: A Case Study of Practices
            at Amazon Warehouses in Poland.
                       Marta Rozmysłowicz* - Piotr Krzyżaniak+

1. Introduction. 2. Amazon’s Algorithmic Employee Evaluation System. 2.1. Productivity
Quotas. 2.3. Quality Quotas. 2.3. Evaluation Results. 3. Litigating Amazon’s Algorithms
Evaluation System in Poland. 4. The GDPR and Employee Evaluation. 4.1. Human
Intervention. 4.2. Article 22(2) of the GDPR 4.3. Employee Evaluation in Polish Labor Law
– Substantive Law. 4.4 Employee Evaluation in Polish Labor Law – Procedural Law. 4.5.
Article 22(2) letter c of the GDPR. 5. Conclusions.


                                                    Abstract

    The subject of this article is the algorithmic employee evaluation system at Amazon’s warehouses
    in Poland. A weekly performance review, the evaluation is a measure of productivity and quality,
    gathered in real time as warehouse associates scan barcodes throughout the working day.
    Evaluation results instruct on the employment status of individual workers, without any input
    from supervisors. The article probes the significance of the European General Data Protection
    Regulation (GDPR) for bolstering job security at workplaces like Amazon, where HR decisions
    are automated and based on the processing of work performance data. Article 22 of the GDPR
    lays down a prohibition for decision-making based solely on the automated processing of
    personal data. In turn, it establishes the right to human intervention, which might allow
    employees to avoid the adverse effects of an employee evaluation, if it did not ensure significant
    human input. Departing from a shop-floor level view of Amazon’s employee evaluation system
    that is reinforced by insight gained through litigation in Polish labour courts, this article argues
    that the process of evaluating workers is not a purely technical operation that can be consigned
    to algorithmic management. Employee evaluation must abide by certain legal criteria, which
    ultimately requires human discretion.

    Keyword:s Algorithmic Employee Evaluation; Algorithmic Management; Amazon Warehouses;
    GDPR; Human Intervention.


* Marta Rozmysłowicz coordinates the legal team at OZZ Inicjatywa Pracownicza (Workers’ Initiative) trade
union in Poland. She is currently preparing a Master's Thesis in labour law. Marta is an Affiliate Fellow of the
Workers’ Rights Institute (WRI) at Georgetown Law. She was a union representative and a member of the
warehouse health and safety commission at Amazon’s Fulfillment Center in Poznań..This essay has been
submitted to a double-blind peer review. This essay was initially presented during the sixth edition of Labour
Law Research Network (LLRN6) conference that was held in Warsaw, Poland from 25-27 June 2023. The
paper was presented during the panel “Digitalisation: use of data at the workplace”, which was chaired by prof.
Tammy Katsabian (The College of Management, Israel).
+
  Labor union legal representative, PhD candidate at Adam Mickiewicz University in Poznań.
    Marta Rozmysłowicz                                                                   Italian Labour Law e-Journal
    Piotr Krzyżaniak                                                                            Issue 2, Vol. 16 (2023)
                                                                                                Section: Miscellaneous




1. Introduction.

    In workplaces like Amazon warehouses in Poland,1 technology has replaced the once
personal relationship between employees and their supervisors. Not only is the work process
organized remotely by algorithmic management devices, practically all human resources (HR)
decisions are automated. At Amazon, technology is used to collect data regarding the number
of completed orders, productivity, quality of work and employee absences. On the basis of
past trends, the computer system sets productivity quotas, acceptable rates of absences,
preferred employment status and a number of other guidelines concerning individual
workers, as well as the warehouse collectively. In effect, the process of evaluating worker
performance occurs in real time as vast amounts of personal data are analysed by the
company’s algorithms. Employee evaluation results are then generated by the computer
system to direct HR decisions about continuing or terminating the employment contract.
    Underlying such use of technology to manage the workplace is the idea, that
“unstructured subjective judgment is not rigorous or trustworthy as a way to assess talent or
create human resources policies. Instead, data – large pools of objective, generally
quantitative data – should form the foundation for decision-making in the HR space”.2 This
article takes issue with the narrative that automated decision-making is a more objective and
fair method of managing the workforce. In what follows, we present a shop-floor level
description of the algorithmic employee evaluation system used in Amazon’s warehouses in
Poland. We show that this mechanism, likely very similar to performance review systems
used by the company at its many other warehouses around the world, is limited to measuring
only certain types of employee activity, while omitting others. Whereas the company’s
algorithms calculate monthly indicators of productivity, quality and attendance, the system
makes it virtually impossible for employees to discern what is expected of them. This leads
to the one-sided assessment of employees since it is only the employer (with the exclusion
of lower and mid-level management), who sets and understands the rules of evaluation.
Algorithmic performance review does not stand the test of objectivity and fairness. Instead,
this system contradicts the individual nature of the employment relationship as such.
    In response to this dilemma, we echo the question posed earlier in the literature: “to what
extent can the existing legal concepts and normative framework adequately capture the
challenges posed by the increasing use of algorithms in the employment context”?3 We
propose answers through a case study analysis of how the legal problem presented by
automated decision-making about employees at Amazon has been tackled in Poland. To this
end we interrogate the legal rules of evaluation in Polish labour law and discuss how the
courts in Poland have approached this matter. The outcome of the cases examined is less

1 Amazon Fulfillment Poland Sp. z o.o. currently operates 10 warehouses (“fulfillment centers”) in Poland and
employs over 70,000 workers directly or indirectly. See the company’s Polish website,
https://biuroprasoweamazon.pl/O-Amazon-w-Polsce/Centra-Logistyki.html (last accessed on 18 August
2023).
2 Bodie M. T., Cherry M.A., McCormick M.L., Tang J., The Law and Policy of People Analytics, in University of

Colorado Law Review, 88, 4, 2017, 964.
3 Otto M., Workforce Analytics v. Fundamental Rights Protection in the EU in the Age of Big Data, in Comparative Labour

Law & Policy Journal, 40, 3, 2019, 390.

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    Marta Rozmysłowicz                                                           Italian Labour Law e-Journal
    Piotr Krzyżaniak                                                                    Issue 2, Vol. 16 (2023)
                                                                                        Section: Miscellaneous




important than the presentation of legal rationale and arguments that have come to fore in
these judicial disputes. As the problem of automated decision-making in the workplace
presents legal challenges on a global scale, an examination of how existing, local legal
frameworks and judicial institutions have weathered and responded to these challenges
stands to inform initiatives at regulating technology on a wider scale. Furthermore, the
substantive law and the legal avenues explored in the cases decided in Poland may in fact
mirror the legal concepts in place in other jurisdictions, particularly in other civil-law
European Union legal systems. Finally, Amazon is a global employer that makes international
workplace policy. While the company’s internal policies certainly differ from country to
country as they are adjusted to local law and the culture of industrial relations, the underlying
assumptions in its core policies are standardized. Our aim in this article is to contribute to
the wider understanding of how Amazon’s workplace policies affect workers and attempt to
redefine the employment relationship as such.
    Accordingly, this article argues that Amazon’s algorithmic employee evaluation system
fails to comply with the minimal standards set in Polish labour law, in following which
employers must use fair and objective criteria in evaluating employees and their
performance.4 It is in fact the human element, or subjective judgment in evaluating
employees, that actually assures objectivity and fairness in evaluation. We point to this
element as a safeguard against legally binding automated decision-making about employees
that is already in place in Polish labour law.
    It is in this context that we turn to the significance of the European General Data
Protection Regulation (GDPR)5. Article 22(1) of the GDPR lays down a general prohibition
for decision-making based solely on the automated processing of personal data, such as work
performance. The regulation establishes the right not to be subject to a decision based solely
on the automated processing of personal data, or the right to human intervention. In this last
aspect, Articles 22(1) of the GDPR reinforces the interpretation of the role of subjective
judgment as a power balancing measure between employer’s authority (managerial
prerogative) and employee’s rights to privacy, personal data protection as well as to being
evaluated in using criteria that are fair and objective. In effect, the GDPR may allow
employees the right to avoid the negative effects of an employee evaluation (like termination),
if significant human contribution was not ensured in its course. As such, it may serve
bolstering job security at workplaces like Amazon. In what follows we examine the possible
application of this provision of the GDPR in the context of automated employee evaluation.
    The information presented in this article derives in part from the authors’ own
experiences with the company employee evaluation system as warehouse associates at
“POZ1”, Amazon’s distribution centre (referred to in company jargon as “fulfillment
center”) in Poznań. One of the authors worked at POZ1 during the first year that it opened
(since October 2014), while the other author was employed there over the course of 2018-
2020 and also served as a shop steward. Both authors’ work performance was evaluated by

4 Polish Labor Code, Article 94(9).
5Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 Apr. 2016 on the protection
of natural persons with regard to the processing of personal data and on the free movement of such data, and
repealing Directive 95/46/EC.

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    Marta Rozmysłowicz                                                         Italian Labour Law e-Journal
    Piotr Krzyżaniak                                                                  Issue 2, Vol. 16 (2023)
                                                                                      Section: Miscellaneous




Amazon’s system. As members of the rank-and-file trade union OZZ Inicjatywa
Pracownicza (Workers’ Initiative),6 the authors represent the company’s employees in labour
court and therefore another part of the information presented in this article is based on
litigation that relates to Amazon’s employee evaluation system.


2. Amazon’s Algorithmic Employee Evaluation System.

    In Amazon’s warehouses in Poland, the exercise of managerial prerogatives in the realm
of worker performance review is automated. As such, Amazon’s computer system collects
vast amounts of personal data throughout the working day and uses algorithms to measure
two indicators: productivity and quality of work. These indicators are considered
independently in separate assessments that are carried out on a weekly basis. An employee’s
failure to meet only one of these indicators may, under certain conditions, lead to a
recommendation for dismissal.


2.1. Productivity Quotas.

   Quotas, or what Amazon calls “minimum indicators” of performance are set once a
month based on employee productivity in the previous period. The performance indicator is
a specific number of products that an employee must, depending on the function, pick from
the rack, put on the rack, pack, or sort, among other activities, per hour, on average. The
degree to which the quota was achieved by an employee is determined automatically. This is
possible because almost every activity that the employee performs requires scanning a
barcode. Stickers with barcodes are not only found on products stored in the warehouse,
they are also applied to product locations on shelf units, containers and the bins in which
products are transported, as well as workstations and identification badges assigned to each
individual employee. By constantly scanning various types of barcodes, employees feed the
computer system with data not only about their performance, but also about their current
location within the workplace, breaks in the work process and periodic fluctuations in the
pace of work.
   Amazon uses this data towards various ends, some of which fall outside the traditional
boundaries of managerial prerogative and have no foundation in labour law. An example of
this are penalties for taking ‘additional breaks at work’, if the system shows that the employee
did not perform any registered activity for a period longer than 3 minutes. Called “time off
task” in company jargon, such “breaks” in the working sequence refer to time not spent
scanning barcodes. Workers might use these moments to comply with health and safety
regulations (like fetching a ladder to safely reach for an item on the upper rack of a shelf

6 Warehouse workers formed the Amazon section of OZZ Inicjatywa Pracownicza soon after POZ1 was
opened in December 2014. OZZ Inicjatywa Pracownicza is the largest and the only representative trade union
at Amazon, with presence at all 10 of the company’s distribution centres in Poland and 1,041 employee
members as of 31 December, 2022. See: www.ozzip.pl

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    Marta Rozmysłowicz                                                                 Italian Labour Law e-Journal
    Piotr Krzyżaniak                                                                          Issue 2, Vol. 16 (2023)
                                                                                              Section: Miscellaneous




unit), assist a recently hired employee, replace a broken scanner, walk to their workstation,
talk with a co-worker, sit down on a chair to rest, or use the bathroom, among many other
possibilities. Punishment for going over 3 minutes in such cases usually involves getting
called to the manager’s desk for a correctional talk or receiving a warning letter. Employees
are often only informed of the total sum of these break periods per unit of time (such as the
entire working day).
    The productivity quota is set for a period of one month based on the individual
performance of all warehouse associates during the preceding period. For this purpose, the
system “calculates” new “performance indicators” at the level of a certain percentile of
individual work results, ranked in ascending order. Importantly, it is not possible for all
employees to achieve the minimum. The system assumes in advance that a certain number
of the least efficient workers, which the company indicates as the 10th percentile, will not
meet the productivity quota. Workers who perform at this percentile will receive a negative
evaluation result. This particular aspect of the evaluation system has been especially criticized
by trade unions.
    When employees exert themselves more, the productivity quota rises in the next period.
This mechanism is independent of any organizational and technical improvements made in
the work process. It may therefore be that the productivity quota increases only because
some employees work over and above performance indicators – what the trade unions
believe occurs as a rule – despite the lack of any technical improvements7. Amazon maintains
that since its system of “minimum indicators” does not serve to determine the amount of
piecework pay, the legal norm expressed in Polish labour law,8 which ties the rise of
performance quotas to organizational and technical improvements in the work process, does
not apply.
    In fact, there are many productivity quotas at Amazon. Each function has its own
“performance indicator” expressed by the number of “processed” (picked, packed, sorted,
stowed and etc.) products per hour of work on average. Due to their similarity, functions are
combined into “families” and these are in turn arranged by department (Pick, Pack, AFE,
Stow and etc.). The computer system steers an employee’s work in such a way that,
depending on the priority of orders, it moves them between several or even a dozen or so
functions during one working day. Transitions between functions from the same family are
not noticed by employees, despite the fact that they differ in productivity quotas. The
function does not change the way an employee works. The employee continues to perform
the commands that the computer or scanner communicates, except that the characteristics


7 As one of the trade unions noted in a statement on wage increases in the last quarter of 2017, “recently the
quotas (minimum targets) have also grown. Over the period of one year the quota increase for some processes
was even 40% (processes: LP-Receive, Pack multi, Returns) or 20-30% (Pack single, Receive, Gifts). Wage rises
do not offset the much greater workload.” See: OZZ Inicjatywa Pracownicza at Amazon Fulfillment Poland
Sp. z o.o., Inicjatywa Pracownicza Amazon o ostatnich podwyżkach (translation: the Workers’ Initiative on the recent
wage increases), (4 September 2017), https://www.ozzip.pl/informacje/ogolnopolskie/item/2296-inicjatywa-
pracownicza-amazon-o-ostatnich-podwyzki, (last accessed on 18 August 2023).
8 In § 2, Article 83 of the Polish Labor Code states: work standards are determined in accordance with the level

of technological advancement and organization of work. Work standards may be modified along with the
introduction of technical and organizational measures that improve the efficiency of work.

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 Marta Rozmysłowicz                                                     Italian Labour Law e-Journal
 Piotr Krzyżaniak                                                              Issue 2, Vol. 16 (2023)
                                                                               Section: Miscellaneous




of the products that pass through the employee’s hands change. This change may not be
discernable to the employee. In addition, employees often do not work continuously during
the week in the same department of the warehouse (internal rotation), what does not exempt
them from being assessed by the evaluation system. Thus, within the evaluation period of
one week, an employee is usually subject to many different “performance indicators”.
    Yet the degree to which an employee meets the productivity quota while performing a
given function is not always taken into account in the weekly evaluation. It is taken into
account only when the total working time in a given function during the week is not less than
5 hours. When this condition is met, the degree to which an employee met the productivity
quota in relation to the functions they performed is averaged. Ultimately, the employee’s work
is assessed by the percentage of the productivity quota that she achieved (as in, “98% to the
target”, or “105% to the target”). Considering that employees perform several or even a
dozen or so functions during the working week while processing various products of
different sizes (setting aside the fact that some processes do not actually distinguish between
sizes) or in different departments, in fact, their weekly productivity quota (if a quota were to
be extracted for such a time period) does not actually correspond to any quota assigned to a
particular function, or which is communicated by managers to employees. In effect,
employees have no way of discerning what exactly is expected of them during the working
day.


2.2. Quality Quotas.

   According to Amazon’s workplace policy for its fulfillment centers in Poland, the quality
indictor is set as “the number of errors made per one million chances of making an error”.
The number of errors made by employees in a working week is compared with historical data
from the same warehouse department. Errors are detected automatically by the system or by
other employees performing the function of quality control. It is always the system that links
a specific error to an employee. Quality is also presented to employees in an average value,
expressed as percentage to target.


2.3. Evaluation Results.

   An employee evaluation can be: 1) negative, if the employee’s average performance during
the working week is lower than 100% of the productivity quota or 80% of the quality quota;
2) neutral, when the employee’s average performance amounts to at least 100% but not more
than 120%, or if the quality quota is at least 80% but not more than 100%; or 3) positive,
when the employee performs above 120% in productivity or above 100% in quality. A
negative evaluation results in the employee receiving ‘feedback about the need for
improvement’, and in certain situations, a “recommendation for dismissal”. If the evaluation
is neutral, no feedback is issued. If the evaluation is positive, an employee might receive


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    Marta Rozmysłowicz                                                              Italian Labour Law e-Journal
    Piotr Krzyżaniak                                                                       Issue 2, Vol. 16 (2023)
                                                                                           Section: Miscellaneous




praise, but this is rare in practice. Printouts from the system are only handed out to employees
in the case of negative evaluation.
    Recommendations for dismissal are generated by the system when an employee has been
negatively evaluated for the fourth time in a short period. These intervals are specified in the
workplace policy. But a rule in the policy allows Amazon to proceed immediately to the
fourth stage of the evaluation (recommendation for dismissal) if the employee has already
been negatively evaluated 6 times in the past during the year. Significantly, this rule applies
even if during other periods in the year, for example, in-between negative assessments, the
employee was able to meet or surpass the quotas.
    From the workers’ perspective, the main problem with Amazon’s employee evaluation
system seems to be the frequency of evaluation, which instils in workers the constant fear of
losing their jobs.9 This fear also induces the feeling of lack of stability in employment.
Further, employees are unable to verify data measured by the algorithms, which greatly
weakens their position in relation to the employer. This becomes especially apparent once
an employee attempts to bring legal action for an unfair dismissal, which was based on a
negative evaluation. Lastly, this system makes the employer’s expectations on performance
unclear to employees.


3. Litigating Amazon’s Algorithms Evaluation System in Poland.

   In Poland, judicial assessment of employee evaluation usually takes place when an
individual employee files a lawsuit for unfair termination of the employment contract. Until
recently, Polish courts assumed that a claimant employee is not entitled to bring action aimed
solely at revoking an employee evaluation. Instead, it was argued that an employee evaluation
can be examined by a court particularly when it served as the basis for dismissal or if it
affected the wage amount. This situation changed with a recent judgment handed down by
the Supreme Court of Poland,10 in which the Court indicated explicitly that an action to
repeal an employee evaluation constitutes a civil case in the field of labour law both in the
sense of procedural law and substantive law.11 In effect, the Court admitted that workers are
entitled to file lawsuits in labour court so as to initiate judicial control of employee
performance reviews. In another judgment, the District Court in Poznań found that an
employee’s legal interest in litigation may be exclusively based on the claim that by means of
the performance review, the employer violated the employee’s personal rights. These new
interpretations open the possibility for Amazon employees to challenge negative evaluations,
regardless of whether they were dismissed or if they experienced any other adverse effects as
a result of negative evaluation.


9 For comparison, in Poland, teachers are subject to performance review once per year, “in order to prevent
too frequent evaluation, which could then turn into a repressive measure”. Barański A., Karta Nauczyciela.
Komentarz, wyd. X, 2018, Wolters Kluwer Poland, Warsaw, art. 9(c).
10 Wyrok Sądu Najwyższego z dnia 17 stycznia 2019 r., sygnatura akt II PK 263/17.
11 This case concerned the periodic evaluation of an academic teacher. In this situation, as in the case of most

employees, labor law does not directly regulate the judicial procedure to appeal such an evaluation.

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     Marta Rozmysłowicz                                                        Italian Labour Law e-Journal
     Piotr Krzyżaniak                                                                 Issue 2, Vol. 16 (2023)
                                                                                      Section: Miscellaneous




    Up to now, in as far as the authors are aware, no Amazon worker has challenged an
employee evaluation in court (in Poland). All cases known to the authors concern employee
evaluation only indirectly, that is to the extent that it was the basis for dismissal. In these
cases, the employees questioned the evaluation by filing lawsuits in labour court for unfair
termination. An important caveat must be mentioned here. The courts ruled in these cases
with the broadly accepted thesis in mind that termination of an employment contract with
notice is the ordinary way of severing the employment relationship, available to both parties.
As such, this form of termination is generally warranted and does not require any particularly
serious incentive. It is enough that the reasons for dismissal are indicated in writing and that
they are precise, genuine and understandable to the employee.12 In practice, this means that
proving the mere fact of having carried out a performance review, which generated a negative
outcome, usually suffices for an employer to substantiate the termination. Issues like the
selection of evaluation criteria, or the methodology used in evaluating are typically treated as
secondary. In effect, the reason for dismissal is not examined by the court as thoroughly as,
for example, when a worker is dismissed due to a serious violation of basic duties
(termination without notice).13
    In 2018 and 2022 the Circuit Court in Poznań (court of second instance) ruled in favour
of Amazon in two cases involving employee evaluation. The claimant employees’ contracts
had been terminated with notice on the basis of negative employee evaluation due to not
making the productivity rate. In both cases, the Court found that the employee evaluation,
which had been conducted in the manner described earlier in this article, was both objective
and fair. In effect, termination of the employment contract was justified in both cases.14
    Nevertheless, in a third case filed under similar circumstances, already the District Court
in Poznań (court of first instance) ruled that Amazon’s system of periodic employee
evaluation violates Polish labour law.15 According to the Court, an employee evaluation
system cannot be based on constant competition, or what witnesses referred to in their
testimonies as a ‘rat race’. Moreover, the Court found that an evaluation system that does
not actually take into account the employee’s positive achievements (praise) is unacceptable.
Significantly, the Court established that recommendation for dismissal at Amazon is made
only on the basis of the number of negative evaluations (‘feedback about the need for
improvement’) – thus, that it is entirely automated.16 In ruling on the appeal, the Circuit
Court in Poznań shared this argumentation and noted:
    All of the employer’s internal policies must either comply with norms laid out in the
Labour Code, or be more favourable to employees. This is a kind of minimum protection
guaranteed to employees by the legislator. The Code’s provisions supersede all of the

12  Wyrok Sadu Najwyższego z dnia 4 grudnia 1997 r., sygnatura akt I PKN 419/97, and Wyrok Sądu
Najwyższego z dnia 2 października 1996 r., sygnatura akt I PRN 69/96.
13 Pursuant to Article 52 § 1 point 1 of the Polish Labor Code.
14 Wyrok Sądu Okręgowego w Poznaniu z dnia 18 wrzesnia 2018 r., sygnatura akt VIII Pa 14/18 and wyrok

Sądu Okręgowego w Poznaniu z dnia 28 października 2022 r., sygnatura akt VIII Pa 62/22.
15 Wyrok Sądu Rejonowego Poznań - Grunwald i Jeżyce w Poznaniu z dnia 6 lutego 2019 r., sygnatura akt V P

713/16. The Court found that Amazon’s employee evaluation system is an abuse of the law, violating the
general rule in Article 8 of the Polish Labor Code.
16 Ibid.



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     Marta Rozmysłowicz                                                                 Italian Labour Law e-Journal
     Piotr Krzyżaniak                                                                          Issue 2, Vol. 16 (2023)
                                                                                               Section: Miscellaneous




employer’s less favourable policies and can be applied directly. […] [T]he assumption that at
least 10% of employees, regardless of whether they performed their work objectively with
due diligence and in a conscientious manner, will receive a negative evaluation distorts the
nature of the employment relationship. In this regard, the employer abused its position by
creating a system of competition among employees, which did not involve any form of
reward for them, but only the lack of negative effects. Again, it must be emphasized that [in
this system] some employee would always be evaluated negatively. This is an extremely anti-
worker policy that is contrary to the spirit of labour law. The District Court correctly
observed that this policy should not apply.17
   The cases discussed above show that Polish jurisprudence is not consistent in its legal
assessment of the performance review system at Amazon. So far, no such case has been
brought before the Supreme Court. In all of the cases examined in this section, the value of
the dispute, which is related to the wages that warehouse associates earn at Amazon, was too
low for the parties to be entitled to an appeal in cassation to the Supreme Court.18 The cases
discussed here were adjudicated in the legal context that applied before entry into force of
the GDPR.


4. The GDPR and Employee Evaluation.
4.1. Human Intervention.

   Article 22(1) of the GDPR lays down a general prohibition for decision-making based
solely on the automated processing of personal data, such as work performance metrics. In
turn, the regulation establishes the right not to be subject to a decision based solely on the
automated processing of personal data, or the right to human intervention (as indicated in
Recital 71 of the GDPR). In interpreting this article, the following doubt arises: does the
phrase “based solely on automated processing” exclude from the scope of application of this
provision any act of personal data processing, in which at some stage, a human being takes
part? Or, does human participation have to significantly impact the result of automated
processing in order for the prohibition to not apply? In other words, what degree of human
intervention makes a decision no longer solely based on automated processing?
   Ambiguities in the interpretation of Article 22 have been most notably addressed in the
Article 29 Data Protection Working Party’s guideline text on the GDPR.19 The guideline
advises, that to qualify as human intervention, the data controller cannot “fabricate human
involvement”, but must “ensure that any oversight of the decision is meaningful, rather than
just a token gesture”.20 As such, human input could not be boiled down to rubber-stamping

17 Wyrok Sądu Okręgowego w Poznaniu z dnia 10 czerwca 2020 r., sygnatura akt VIII Pa 135/19.
18 According to Article 3982 § 1 sentence 1 of the Polish Code of Civil Procedure, an appeal in cassation is
inadmissible in cases concerning labor law and social insurance, in which the value of the subject of the appeal
is lower than 10,000 PLN (about 1,900 GBP).
19 Article 29 Data Protection Working Party, Guidelines on Automated Individual Decision-Making and Profiling for the

Purposes of Regulation 2016/679, European Commission, (adopted on 3 October 2017, Revised and Adopted on
6 February 2018.
20 Ibid, at 21.



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     Marta Rozmysłowicz                                                  Italian Labour Law e-Journal
     Piotr Krzyżaniak                                                           Issue 2, Vol. 16 (2023)
                                                                                Section: Miscellaneous




approval, or “entering data into the system, supervising technical aspects of its functioning,
or merely applying the decision taken by the automated system”.21 In the context at hand,
genuine human input would require a manager to have the authority to change a computer-
generated negative employee evaluation, thereby overriding the algorithm. The manager
would also have to be equipped with the competence to consider other factors than just the
company’s performance indicators in assessing employees. What these ‘other factors’ are may
in fact differ from one workplace community to another.
    Automated processing under Article 22(1) of the GDPR will thus undoubtedly still
include such manager’s activities like handing “feedback” printouts to employees or
presenting them notices of contract termination, based on negative performance calculated
by the computer system. In these activities, the manager could, in fact, easily be replaced by
an algorithm. The prohibition in Article 22(1) of the GDPR would only not apply, if
workplace policy instructed managers to verify data generated by the automated employee
evaluation system and take into account the employee’s contributions that were not captured
in the scanning of barcodes.
    In effect then, the right to human input expressed in this provision relates directly to data
controllers’ authority, to use their own discretion when issuing decisions based on the
automated processing of personal data. Consequently, a functional interpretation of this
provision leads to the conclusion, that the degree of human intervention must, in fact, be
quite significant.


4.2. Article 22(2) of the GDPR.

   The right to human input is not absolute. Article 22(2) of the GDPR provides three
exceptions to the general prohibition on automated decision-making based on the processing
of personal data, if the decision:

   a) is necessary for entering into, or performance of, a contract between the data subject
and a data controller;
   b) is authorized by Union or Member State law to which the controller is subject and
which also lays down suitable measures to safeguard the data subject’s rights and freedoms
and legitimate interests; or
   c) is based on the data subject’s explicit consent.

   We will examine these clauses in the reverse order. Firstly, an employee’s consent, even if
obtained upon signing the employment contract, can be withdrawn at any time. Following
Article 7(3) in principio of the GDPR, the data subject has the right to withdraw consent to
the processing of his or her data at any time. As stated in Article 7(3) in fine, it must be as
easy to withdraw as it is to give consent. Clearly then, if an employer’s right to dismiss
workers based on a negative algorithmic evaluation of their performance was conditioned

21   Otto M., nt. (3).

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     Marta Rozmysłowicz                                                                  Italian Labour Law e-Journal
     Piotr Krzyżaniak                                                                           Issue 2, Vol. 16 (2023)
                                                                                                Section: Miscellaneous




only by an employee’s consent, it would in theory at least, be very difficult for the employer
to actually impose this method of evaluation.
   In the second clause, the GDPR locates the legal premise for this exception in other
Union or Member State normative acts. In effect, its inspection requires a discussion of
employee evaluation in the context of Polish labour law.


4.3. Employee Evaluation in Polish Labor Law – Substantive Law.

    As a derivative of managerial prerogative associated with running a workplace, employee
evaluation is undoubtedly an employer’s right. Polish labour law does not regulate how this
right should be exercised besides setting a minimal standard, by which employers must use
fair and objective criteria in evaluating employees and their performance.22 Employee
evaluation can be independent (a periodic review) or it can be functionally related to another
HR decision (for instance, it might precede the intention to terminate an employment
contract). The Supreme Court of Poland has held that the periodic evaluation of an employee
consists of ‘a series (an aggregate sum) of specific evaluations (opinions) expressed according
to specific criteria, which on the one hand have the value of objectivity (an average score),
but which on the other hand are not free from individual assessment on the part of
supervisors’.23 Yet what in this judgement the Court considered a side effect of the procedure
of composing an aggregate employee evaluation, in fact makes for its bottom line; that is,
individual discretion on the part of managers. An evaluation should, in effect, be the sum of
its objective and subjective parts. Further, as the Court has argued, workers must know and
be able to understand in advance what the employer expects of them.24 As such, employees
must be familiar with both the methods used to conduct a performance review as well as the
criteria applied, before starting work.
    Importantly, employee evaluation should be comprehensive, in that it cannot be used as
punishment for incidental behaviour. This essentially distinguishes an evaluation from
disciplinary action.25 The Polish Labour Code contains a closed catalogue of penalties that
employers can apply against workers who engage in disorderly conduct.26 The use of other
forms of punishment is considered an offense against the rights of workers.27 In this context,
the Supreme Court of Poland ruled that the practice of handing out ‘warning letters’ to
employees regarding particular behaviours and then using such letters to justify termination

22 Article 94(9) of the Polish Labor Code. It is worth noting, that some branch-specific acts (pragmatyki służbowe)
do contain more detailed regulations on this matter.
23 Postanowienie Sądu Najwyższego z dnia 6 kwietnia 2011, sygnatura akt II PK 274/10.
24 Wyrok Sądu Najwyższego z dnia 10 listopada 1998 r., sygnatura akt I PKN 428/98.
25 For more on this subject in the Polish legal context, see: Krzyżaniak P., Interes publiczny w rozgraniczeniu funkcji

oceny pracowniczej i kary porządkowej w zakładzie pracy, in Monitor Prawa Pracy, 2, 2019, 14-18.
26 In accordance with Article 108 § 1 of the Labor Code, possible penalties are a warning, or a reprimand. These

penalties can only be applied in situations that are listed in this provision, or upon failing to comply with the
adopted organization and order of the process of work, regulations on occupational health and safety and fire
protection, as well as the adopted methods of confirmation of an employee’s arrival and presence at work and
justification of any absences from work.
27 According to Article 281 § 1(4) of the Labor Code.



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     Marta Rozmysłowicz                                                        Italian Labour Law e-Journal
     Piotr Krzyżaniak                                                                 Issue 2, Vol. 16 (2023)
                                                                                      Section: Miscellaneous




is unacceptable.28 Similarly, lower courts in Poland have found other types of ‘correctional
letters’, drawn up by supervisors, to constitute a violation of labour law.29 It would thus be
unacceptable to restrict an employee evaluation to specific behaviour, types of employee
activity or aspects of their work, while omitting others. Such practice could lead employers
to deploy their right to evaluate employees within legal parameters reserved for the regime
of employee disciplinary liability. Separating these two types of managerial prerogative is
important, because the regime of disciplinary liability is allowed to infringe upon an
employee’s personal rights30 to a much greater extent than a performance review. The need
for this distinction becomes more palpable when the employee evaluation system violates
employee privacy, which is made possible by automated algorithmic management.
    It follows then, that there is no place in Polish labour law for automated decision-making
that is legally binding for employees. The use of algorithms to track and assess performance,
like in the case of Amazon, inevitably leads to a one-sided employee evaluation. Once such
an evaluation becomes one-sided, it ceases to meet the criteria of objectivity and fairness. In
Polish labour law, as mentioned earlier, it is both the employees as well as their performance
that are to be evaluated.31 An evaluation should therefore be a holistic appraisal of an
employee that is not restricted only to that employee’s selected aspects or activities. In
disciplinary action, it is not the employee who is ‘evaluated’, but the disorderly conduct.
Notably, disciplinary procedure also requires human input, as the employer must first give a
hearing to the employee, before imposing a penalty.32 Labour law in Poland does not actually
provide for anything in between the general, global evaluation of an employee and their
performance, and a penalty for specific, incidental conduct. In both, the human factor is
indispensable. Finally, it seems that blurring the distinction between evaluation and
punishment is a feature of the employer’s powers enhanced by algorithmic management. As
we have shown here, in the Polish context, these are separate legal regimes that cannot be
merged at the employer’s will.


4.4. Employee Evaluation in Polish Labor Law – Procedural Law.

   Turning to a more procedural consideration of clause “b” in Article 22(2) of the GDPR,
the law in Poland does not provide explicit legal protection to employees who question the
act of conducting an employee evaluation. Although the Polish Supreme Court established
the existence of a judicial route for litigation that aims to repeal or change an employee
evaluation, for a long time no substantive legal basis for such litigation was recognized.33
Instruments of civil procedure, whereby a claimant can demand that a court establish the
existence or nonexistence of a legal relation or right,34 were excluded from application since,

28 Wyrok Sądu Najwyższego z dnia 23 listopada 2010 r., sygnatura akt I PK 105/10.
29 Wyrok Sądu Okręgowego w Świdnicy z dnia 6 września 2017 r., sygnatura akt IV Ka 433/17.
30 Understood as health, freedom, honor, or freedom of conscience, among others.
31 The Polish Labor Code, article 94(9).
32 The Polish Labor Code, article 109 § 2.
33 See: Postanowienie Sądu Najwyższego z dnia 4 lutego 2009 r., sygnatura akt II PK 226/08.
34 Litigation described in article 189 of the Polish Code of Civil Procedure.



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     Marta Rozmysłowicz                                                         Italian Labour Law e-Journal
     Piotr Krzyżaniak                                                                  Issue 2, Vol. 16 (2023)
                                                                                       Section: Miscellaneous




as it was argued, a negative periodic evaluation does not, by itself, create any right or legal
relation. Further, it was argued that claims to establish a legal relation or right cannot
effectively aim at establishing facts that are not of a law-shaping nature. In effect, it was
maintained that labour courts could examine employee evaluations only indirectly, as a source
of accompanying ailments. As the Court explained in one of its judgments, “[i]t cannot [...]
be ruled out that a negative evaluation can affect employee rights or obligations. It can also
infringe upon an employee’s personal rights. However, in each of these cases, it would be
necessary for the claimant employee or the court to indicate specific substantive legal
grounds for the asserted claims”.35
    Only in 2019, in a judgement that was already discussed earlier in this article,36 the Polish
Supreme Court pointed directly to the availability of both a procedural judicial route and a
substantive legal claim, to employees who were evaluated negatively. This judgment,
however, concerned the periodic evaluation of an academic teacher. It is impossible to
predict how the courts will react in the future to litigation brought by workers from other
professional groups, like warehouse associates, against the very act of evaluation, when it
does not involve further adverse effects. Although this judgment, in our opinion, opens an
opportunity for all employees, it does not yet determine the existence in Polish law of
“suitable measures to safeguard the data subject’s rights and freedoms” or the “legitimate
interests” of employees against automated data processing. Importantly, the GDPR specifies
that these legal measures must be “suitable”, thus not just any, legal measures. In sum, the
lack of judicial protection for claims aimed at repealing an employee evaluation in the strict
sense, forces the prospective employee-claimant to demonstrate specific adverse effects to
the employment relationship that would give legal grounds for litigation. This obstacle
effectively precludes the application of the exception in Article 22(2) letter b of the GDPR
in the case of automated evaluation without employee consent.


4.5. Article 22(2) letter c of the GDPR.

    It remains to determine whether conducting an employee evaluation in an automated
manner is necessary for entering into, or performance of, an employment contract. In
answering this question, we must refer again to the standards of employee evaluation laid out
in Polish labour law. As discussed above, for the application of objective and fair evaluation
criteria the human factor must be meaningfully harnessed in the course of evaluation.
Effectively, it already seems that automated data processing, based on statistical methods and
imbued with a margin of error by definition, may not ensure a proper degree of
individualization in evaluating employees.
    Polish labour law sets the rule that in their duties as employees, workers are obliged to
perform work both conscientiously and with due diligence.37 While due diligence represents
an indicator of employee performance that can be measured in an objective manner,

35 Wyrok Sądu Najwyższego z dnia 31 stycznia 2017 r., sygnatura akt I PK 49/16.
36 Wyrok Sądu Najwyższego z dnia 17 stycznia 2019 r., sygnatura akt II PK 263/17.
37 The Polish Labor Code, article 100 § 1.



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     Marta Rozmysłowicz                                                   Italian Labour Law e-Journal
     Piotr Krzyżaniak                                                            Issue 2, Vol. 16 (2023)
                                                                                 Section: Miscellaneous




conscientious performance cannot be measured objectively. This fact rules out the
prospective role of automated employee evaluation in performing the employment contract,
at least in the current state of technological development. Further, since the terms of
employment contracts as well as those of other legal acts, on the basis of which the
employment relationship is established, cannot be less favourable to the employee than the
provisions of labour law,38 so the automated employee evaluation could not be a necessary
precondition for entering into, or performance of, an employment contract. In the event that
automated employee evaluation was postulated in internal workplace policies, its application
would still be excluded by the general rules of Polish labour law. 39


5. Conclusions.

    It follows that Article 22(1) of the GDPR allows employees an effective right not to be
subject to an employer’s decision based on automated data processing. This right should not
raise any doubts in so far as it pertains to decisions concerning the employment contract.
The case whether an automated employee evaluation is an example of a decision within the
meaning of Article 22(1) of the GDPR has yet to be settled definitively. It is important to
remember that in describing the notion of “decision”, after the words “produces legal
effects”, the rest of Article 22(1) of the GDPR reads, “or similarly significantly affects” the
data subject. This last part considerably extends the catalogue of possible impact that a
decision might have in the sphere of employee interests. As the Article 29 Data Protection
Working Party explains, for data processing to significantly affect someone, “the decision
must have the potential to”, for instance, “significantly affect the circumstances, behaviour
or choices of the individuals concerned”.40
    The Court of Justice of the European Union (CJEU) is currently hearing the first case, in
which it has been asked to interpret Article 22 of the GDPR.41 Notably, the CJEU is
deciding, whether an automated credit score rating (an evaluation of the data subject)
established by a credit information agency on the basis of automated processing (for the
purpose of deciding if a bank enters into a loan contract with the data subject), already
amounts to a decision in the sense of Article 22(1). If in its judgment, the CJEU adopts a
broad interpretation of the notion of a decision under Article 22(1), findings in this case
might prove important for the issue at hand.
    More broadly, automated decision-making based on profiling simply runs counter to the
nature of employee subordination (or the principle of performing work under the employer’s
unilateral control), which characterizes the employment relationship. That subordination is
understood as a human to human relationship. Due to its strict nature and wide scope, it
simply has to be individualized to an extent that is not guaranteed by algorithms. In this
respect, automated management presents the further risk, already noted in the literature, of

38 Pursuant to The Polish Labor Code, article 18 § 1.
39 The Polish Labor Code, article 9.
40 Article 29 Data Protection Working Party, nt. (19).
41 Case C-634/21, SCHUFA Holding and Others (Scoring), 15 October 2021.



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     Marta Rozmysłowicz                                                                  Italian Labour Law e-Journal
     Piotr Krzyżaniak                                                                           Issue 2, Vol. 16 (2023)
                                                                                                Section: Miscellaneous




leaving managerial prerogative unchecked and therefore no longer able to reconcile with “the
respect of the human dignity of workers necessary in democratic societies founded on
equality principles”.42 As we have shown in this article, Polish labour law already contains a
safeguard intended to rationalize and limit managerial prerogative in this respect. That
safeguard is the role of human supervisors and their personal discretion in the process of
employee evaluation. It is the human factor, which assures that an employee evaluation
abides by the legal standards of objectivity and fairness. Such understanding of the relevance
of the role of human supervisors and their individual judgment is reinforced by Article 22 of
the GDPR. Importantly, failure to use this authority of individual discretion on the part of
supervisors may be associated with an employee’s right to refuse to be subject to the effects
of automated individual decision-making.
    Finally, the norm expressed in Article 22 of the GDPR may allow for preventing the
further concentration of managerial prerogative in HR processes. As we have described in
this article, algorithmic management has reduced or depreciated the role of managers. In the
case of Amazon warehouses in Poland, neither individual managers who come into daily
contact with employees, nor management on the national level has any actual bearing on the
algorithmic evaluation system. This process does not mean the erosion of employer’s
managerial prerogative as such, but rather its greater concentration within the company’s
hierarchy. In large, international enterprises like Amazon, the automated employee
evaluation system is designed and implemented on a central level by the IT provider. The
system is likely administered in the company’s EU headquarters in Luxembourg or even at
the company’s United States headquarters in Seattle. In effect, authority does not disappear,
but moves to a higher level that is less discernable to employees and less susceptible to their
initiatives. Moreover, this hierarchical concentration of managerial prerogatives makes no
consideration of the values specific to a particular workplace community, which should be
taken into account when evaluating employees. The decoding of these values is in fact an
eminently human task, which can only be conducted by a human-member of such a
community. Article 22 of the GDPR might set a new standard for the greater role in authority
of individual managers, at least in making HR decisions. For employees, this might contribute
to bolstering security and stability in employment. In terms of the social impact of the law,
or in this case, how the law affects social relations inside the workplace, this provision might
in effect lead to rendering relations between the employer and employees more democratic,
as workers stand to gain more voice on the job.




42De Stefano V., “Negotiating the Algorithm”: Automation, Artificial Intelligence and Labour Protection, in Comparative
Labour Law & Policy Journal, 41, 1, 2019, 20.

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 Marta Rozmysłowicz                                                         Italian Labour Law e-Journal
 Piotr Krzyżaniak                                                                  Issue 2, Vol. 16 (2023)
                                                                                   Section: Miscellaneous




                                               Bibliography

Barański A., Karta Nauczyciela. Komentarz, wyd. X, 2018, Wolters Kluwer Poland, Warsaw, art.
9(c);
Bodie M. T., Cherry M.A., McCormick M.L., Tang J., The Law and Policy of People Analytics, in
University of Colorado Law Review, 88, 4, 2017, 961 ff.;
De Stefano V., “Negotiating the Algorithm”: Automation, Artificial Intelligence and Labour Protection,
in Comparative Labour Law & Policy Journal, 41, 1, 2019, 20;
Krzyżaniak P., Interes publiczny w rozgraniczeniu funkcji oceny pracowniczej i kary porządkowej w
zakładzie pracy, in Monitor Prawa Pracy, 2, 2019, 14-18;
Otto M., Workforce Analytics v. Fundamental Rights Protection in the EU in the Age of Big Data, in
Comparative Labour Law & Policy Journal, 40, 3, 2019, 389 ff..



Copyright © 2023 Marta Rozmysłowicz, Piotr Krzyżaniak. This article is released under a
Creative Commons Attribution 4.0 International License




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