NEW DEFINITION OF MOBBING IN THE LABOR CODE – DRAFT AMENDMENTS

The amendment of the Labor Code regarding mobbing is another step by the Polish legislator to update the regulations governing employment relationships in Poland. The published draft amendments aim to clarify the concept of mobbing while simultaneously increasing employee protection. We invite you to read our article discussing the proposed changes. 

MOBBING IN THE CURRENT UNDERSTANDING 

To recognize that a particular action or behavior meets the criteria for mobbing, five conditions specified in Article 94(3) of the Labor Code must be met. Specifically, the action or behavior must:   

1) concern the employee or be directed against the employee;   

2) involve persistent and long-term harassment or intimidation of the employee;   

3) cause the employee to have a diminished professional assessment;   

4) lead to or aim at humiliating or ridiculing the employee;   

5) cause isolation or exclusion of the employee from the team.   

The current provisions require the employee (the claimant) to demonstrate that all conditions have been met. If the behavior only meets part of the conditions outlined in the Labor Code, it cannot be considered mobbing along with all the related consequences.   

In practice, the evidence available to employees in such cases is severely limited. As a result, employees often cannot prove that all conditions have been met during the ongoing court proceedings and fail to receive the expected protection of their rights.   

The current definition of mobbing has been criticized for years. The main criticisms of the existing provisions include: (1) the requirement for a diminished professional assessment, (2) limiting protection solely to employees under the Labor Code, and (3) the need to assess the perpetrator’s motivation. 

NEW DEFINITION OF MOBBING 

In response to years of demands, a new draft regulation on mobbing has been presented, aiming to simplify the definition and resolve previous uncertainties. According to the proposed change, mobbing will be defined as behavior involving persistent harassment of an employee, which may manifest in, among other things (the list of cases is not exhaustive), humiliation, demeaning, intimidation, lowering professional assessment, or unjustified criticism.   

The open list of mobbing behaviors allows employees to classify a broader range of actions as unacceptable and enables the adaptation of regulations to a dynamically changing reality.   

The new definition also directly states that mobbing can also include unintentional behaviors that might cause negative consequences. This formulation of the new provisions indicates that it will not be necessary to prove the intent of the perpetrator or the occurrence of any actual negative effects of the behavior for it to be considered mobbing.   

The amended provisions also define an open list of individuals who can be perpetrators of mobbing. These include not only the employer or supervisor but also another employee in an equal position, a subordinate, or other individuals employed by the employer under a different type of contract than the employment relationship. 

WIDER SCOPE OF EMPLOYER’S OBLIGATIONS  

Until now, employers were required to counteract mobbing. The implementation of this obligation was most often recognized as introducing appropriate policies and internal regulations, but the regulations did not impose any specific duties on the employer in this regard. The proposed provisions impose an obligation on employers to actively and continuously counteract mobbing through:   

1) preventive actions (e.g., conducting training, updating employee knowledge);   

2) detecting and appropriately responding (e.g., implementing suitable internal procedures tailored to the organization’s actions, taking real action when mobbing is reported);   

3) corrective actions and support for individuals affected by mobbing (e.g., providing psychological or legal support).   

Proper and diligent implementation of these obligations will be important because it will allow the employer to be exempt from liability if mobbing is found within the organization, and the perpetrator was not a person in a managerial position over the employee or in a superior position.   

This means that for fulfilling the legal obligations to counteract mobbing, it will not be enough for the employer to simply introduce an anti-mobbing policy. With the changes in the law, the employer will have to actively take steps, provide training, and respond to be considered to have genuinely counteracted mobbing. 

AMOUNT OF COMPENSATION 

An employee who has become a victim of mobbing will be entitled to compensation of no less than the amount of their salary for a period of six months or damages. The introduction of a minimum compensation equal to six months’ wages, compared to the previous regulation referring to the minimum wage, indicates the legislator’s determination to enhance protection for employees. 

We encourage you to contact our experts to verify whether the measures you have been taking to prevent mobbing are sufficient to protect employers under the new regulations.