What does the change in the definition of mobbing entail?

The table below illustrates the change in the definition of mobbing:

The amendment bill simplifies the definition of mobbing. It dispenses with the previous numerous prerequisites for a given action or behaviour to be deemed mobbing, essentially limiting it to one - persistent harassment. The legislator explains this concept as follows: persistent harassment is based on the fact that it is repetitive, recurrent or permanent (Article 94³ § 3 of the Labour Code).

The legislator also proposed introducing  a number of provisions clarifying and better specifying the legal definition which indicates the characteristics of mobbing.

• An exemplary catalogue of manifestations of mobbing, including humiliation or denigration, intimidation, isolation or elimination of an employee from the team, unjustified criticism, humiliation or ridicule (Article 94³ § 4 of the Labour Code).
• Clarification that behaviour meeting the definition of mobbing may consist of physical, verbal or non-verbal elements (Article 94³ § 5 of the Labour Code).
• Determination that ordering another person to engage in inappropriate behaviour towards an employee or to encourage such behaviour is also considered to be mobbing (Article 94³ § 6 of the Labour Code).
• Clarification that mobbing can also occur as a result of involuntary and unintentional behaviour and irrespective of the occurrence of any effect on the part of the victim (Article 94³ § 7 of the Labour Code).
• Clarification that a bully can be either an individual (employer, supervisor, person occupying an equivalent position, subordinate, other employee and person employed on a basis other than employment) or a group of persons.

The legislator further proposed introducing the rational (reasonable) victim model, which implies that in assessing whether mobbing has occurred, both the objective actions taken against a given employee and the subjective feelings of this employee, insofar as they are rational, should be taken into account. In other words, it is necessary to analyse whether the subjective feelings of the person concerned as a result of the unwanted behaviour taken against them were rational.

New obligations for employers

The proposed regulations impose new (or modify current) obligations on employers. These include the obligation to:

• proactively and continuously counteract  mobbing through preventive actions, detection and appropriate response, as well as through corrective action and support for those affected,
• introduce  anti-mobbing rules, procedure and frequency of actions into the work regulations (if there is no obligation to establish work regulations, these matters  should be determined in a notice, agreed upon in advance with the trade unions or (in the absence of trade unions) with the employees' representatives).

Importantly, employers should comply with these obligations within three months from the date when the bill came into force (the law is to enter into force within 21 days from the date of its promulgation). There is, therefore, little time to modify existing procedures / regulations (or introduce completely new regulations after they have been agreed with the representative bodies).

The requirement to proactively and continuously counteract mobbing should not be a challenge. Many employers have separate anti-mobbing policies in place, often with separate channels for reporting (including anonymous reporting), and specialised compliance units/departments within organisational structures to ensure that each report is dealt with fairly. However, introducing  corrective measures and support for those affected by mobbing may be problematic. For example, these may include specific benefits for the affected employees - paid leave for the duration of the internal investigation or the support of a therapist or psychiatrist.

Employee claims

Employers should, in particular, pay attention to the draft provisions relating to employees’ claims. The draft stipulates that an employee may claim compensation from the employer being at least six months of the employee's salary or damages. This is a dramatic change. To date, the minimum compensation was equal to one month's minimum salary. It may, therefore, be expected that any court decisions finding that mobbing has occurred will be more severe for employers.

The legislator proposes a mechanism whereby liability for mobbing will be excluded if the employer demonstrates that it has duly fulfilled the anti-mobbing obligations described above and the behaviour with the attributes of mobbing was undertaken by a person who did not manage the employee or was not in a superior position. In such a case, the employee will have the option of pursuing a claim for violation of his or her personal rights directly against the perpetrator.

Conclusions

At first sight, the  bill simplifies the definition of mobbing, while also clarifying its characteristics. Thus, it will certainly be easier for employees to determine that a given behaviour meets the prerequisites of mobbing. Consequently, it is highly likely that employees will be more willing to bring claims before the labour courts.

In turn, further obligations will be imposed on employers to prevent mobbing and to apply corrective and preventive measures. This will require the modification of existing procedures or the introduction of entirely new ones within a relatively short period of time.

The amendment bill is currently in the opinion-gathering stage - at this point it is impossible to predict whether the regulation will be enacted in what form. We will keep you updated on the progress of the legislative work.

Przemyslaw Zając