Mobbing can manifest itself in various forms such as:

• verbal abuse of an employee
• unjustified criticism of a person and rendered work
• excessive encumbrance of an employee with work or, on the contrary, assignment of a small number of tasks or meaningless activities beneath an employee’s qualifications
• reduction of remuneration rendering it less beneficial in relation to other employees carrying out the same work, but on the condition that other features of mobbing exist.

A draft law was recently introduced in parliament proposing inclusion among actions or behaviour constituting mobbing, in addition to harassment and intimidation, of pay disparities based on gender. Such gender-based disparities in Poland are a fact. According to data from the Main Statistical Office in October 2018, average remuneration of man was 19.9% higher than that of women. The purpose of the proposed amendment is more effective protection of female workers against such disparate remuneration. In analysing already existing provisions, there may nevertheless be doubt as to whether the proposed regulations will find broader application and whether they may in practice improve the legal situation of women facing pay discrimination.

It is worth noting that a regulation on unequal pay also appears in the Labour Code in art. 18^3a - 18^3e. Art. 18^3a §1 also mandates equal treatment of employees without regard to gender, age, disability or race. In turn, art. 18^3b §1 indeed recognises, among others, work remuneration disparities as a violation of equal treatment in employment.

In contrast to discrimination, mobbing is not based on improper treatment of an employee due to membership in a group that is distinct on account of its features. It is most frequently associated with conflict at the workplace, animosities, demonstration of power or need to find a scapegoat, whereby attributes such as gender, nationality or political views are secondary.

A mixing of these orders, as proposed by the draft amendment, may lead to legal chaos and doubts over whether it is possible to simultaneously raise claims under equal treatment in employment provisions as well as those regulating mobbing. Limitation solely to claims set forth in art. 94³ (mobbing) may actually worsen the situation of women affected by pay discrimination due to evidentiary difficulties. In addition to a female employee demonstrating remuneration less favourable than that in relation to men carrying out the same work, additional evidence of mobbing is necessary, namely differentiation in pay causing or aimed at humiliating or mocking such employee or her isolation or elimination from a team of co-workers.

Meanwhile, art. 18^3b and 18^3d concerning equal treatment allow female employees to seek compensation without citing any additional effects other than pay disparities in relation to men performing the same work. Moreover, in light of the burden of proof being transferred onto the employee, it will be easier for an employee to base potential claims on the charge of discrimination. In the event of dispute, an employee is not required to prove discrimination. Only facts substantiating the charge of unequal treatment in employment must be presented. An employer must then demonstrate that any distinction among employees was guided by objective reasons.

It should also be pointed out that female employees dealing with pay disparities that may also have negative health consequences would attain a clear statutory basis under the amendment to seek satisfaction for harm suffered in connection with a health disorder (art. 94³ § 3 of the Labour Code). Nevertheless, satisfaction in such a situation is also possible on the basis of existing provisions - compensation under art. 18^3d of the Labour Code is interpreted such as to also cover intangible harm (Supreme Court - Labour, Social Insurance and Public Affairs Chamber ruling dated 7 January 2009, III PK 43/08), as well as art. 445 and 448 of the Civil Code may constitute a basis for employee claims.

Another paradox of the proposed solution, which in principle serves to counteract inequalities, is its abetting of discrimination of other employee groups. A new definition of mobbing would exclude reference to unjustified differentiation in pay due to a feature other than gender, e.g. age or disability, even though older or disabled employees also struggle with pay inequalities on the labour market.

To sum up, already existing legal provisions allow counteraction against pay discrimination based on gender or other features distinguishing employees as well as against any form of mobbing at the workplace. The fact that the problem of pay discrepancy continues to exist, despite the long-standing presence of appropriate labour law provisions, should rather prompt action on the enforcement of regulations, and not their amendment.

Izabela Dziubak-Napiórkowska, Attorney-at-law