Will the Labour Code’s revamped definition of ‘mobbing’ lead to more employee lawsuits?

The initiative and ongoing legislative efforts by the Ministry of Family, Labour, and Social Policy aim to amend the current definition of mobbing (workplace bullying), addressing deficiencies in the existing regulations. The proposed definition is intended to encompass a broad spectrum of unwanted behaviours and to make it easier for employees to pursue claims before labour courts. At present, only a small percentage of these claims are successful due to the complexity of the current regulations.

The projected amendments aim to statutorily define mobbing (workplace bullying) as behaviours involving persistent harassment of an employee, with ‘persistent harassment’ characterized by actions that are repetitive, recurring, or continuous. The concept of mobbing will encompass an open catalogue of actions, expanded to include ordering or encouraging another individual to engage in behaviours exhibiting the traits of mobbing. Examples of such behaviours include: humiliation or derogation, intimidation, undermining an employee’s professional usefulness, unjustified criticism, belittling or ridiculing the employee, hindering work performance by obstructing the achievement of work results, completion of official tasks, use of competencies, communication with colleagues, or access to necessary information, isolating the employee or excluding them from the team. Additionally, the minimum amount of damages that an employee can claim is to be increased to at least six times the size of their remuneration or compensation.

The definition of mobbing proposed by the Ministry diverges from the one currently stipulated in the Polish Labour Code, primarily by shifting from a closed list of behaviours and effects to an adaptable concept based on ‘persistent harassment’. Under this new definition, establishing that mobbing has occurred in an employee’s reported case no longer requires the simultaneous presence of all previously mandated factors. This shift simplifies the process for employees to assert their mobbing claims during internal proceedings within the workplace as well as in potential legal proceedings before a court. Proving that certain conduct falls under the as-yet-undefined case law concept of persistent harassment should be more straightforward than demonstrating adherence to the previous criteria. These required proof of the following behaviours:

• Directed at or targeting the employee
• Characterised by persistent and long-term bullying or intimidation
• Resulting in diminished self-assessment of the employee’s professional capabilities
• Carried out with the intention or effect of humiliating, ridiculing, isolating, or excluding the employee from the team.

Employers are bound by fundamental obligations, regardless of the definition of mobbing or how it forms the basis for employees to assert claims related to such behaviours. These obligations include shaping the rules of social conduct in the workplace, counteracting discrimination and unequal treatment, and protecting the dignity and personal rights of employees. Therefore, even in the absence of a specific mandate to implement preventive measures as outlined in the proposed amendment to the Polish Labour Code, employers should address any undesirable behaviour in the workplace and develop appropriate tools for such interventions.

Employers can currently adopt several preventive measures, in line with applicable regulations and the case law of the Supreme Court. These include:

• Implementing comprehensive anti-mobbing procedures – clear rules for addressing discrimination, resolving conflicts, and handling complaints and investigations
• Setting clear managerial expectations: clearly define managerial responsibilities to ensure understanding of and adherence to workplace standards
• Conducting periodical trainings for managers and employees: organise regular training sessions focused on workplace issues and expected behaviour standards
• Introducing other tailored measures: such as developing and adapting strategies specific to the unique characteristics of the work environment. Mere procedures may not be sufficient.

In the current context, employers’ failures in mobbing prevention primarily stem from the absence of clear procedures and policies in the workplace, lack of mechanisms for monitoring and analysing mobbing incidents, as well as adequate and regular training for both management and employees on recognising and preventing mobbing.

In many organisations, the corporate culture has not been adequately adapted, and an emphasis on excessive competition may foster undesirable behaviours. Additionally, there is frequently an informal tolerance of certain conduct in the workplace, which can lead to insufficient responses to potential reports of mobbing. Employers still have significant work to do in raising employee awareness and fostering a workplace atmosphere that discourages behaviour violating the dignity and personal rights of colleagues.

The proposed amendment introduces new obligations for employers to ensure compliance with the law. Primarily, employers are to actively and continuously counteract mobbing by implementing preventive measures and offering support to victims. Key steps include establishing anti-mobbing policies and internal procedures, alongside corrective actions that are clear and transparent. These measures are to be aligned with the new definition of mobbing and address other forms of discrimination and unequal treatment in the workplace. Employers are to need to establish appropriate mechanisms for reporting and responding to mobbing and for monitoring and documenting violations of workplace standards. Although the specific form of these measures has yet to be defined, this may allow the employers the opportunity to develop creative solutions in this area.

In conclusion, it is clear that with the new approach towards the practical application and enforcement of measures designed to combat bullying and protect employees from all forms of unwanted behaviour, employers should proactively implement additional measures. These steps can help mitigate the risk of employee claims and protect their reputation, even before any potential statutory requirements become more stringent.