Above all, however, mobbing is dangerous to an employee subjected to chicanery or harassment. It can endanger the health of such employee and lead to employment termination. This, in turn, may lead to claims raised against the employer. For this reason, it is imperative for employers to take appropriate action to counteract mobbing, particularly since art. 94³ § 1 of the Labour Code specifically mandates such action on their part.  

An employer may counteract mobbing in various forms:

• notification of employees on the dangers and consequences of mobbing,
• appropriate staff training,
• enact certain procedures that enable discovery and assessment of behaviour bearing the features of mobbing,
• introduce appropriate remedial measures.

Nevertheless, the mere introduction of anti-mobbing measures does not suffice. Employers must ensure that anti-mobbing procedures and actual actions undertaken by a person or body appointed to conduct clarification proceedings respect the principle of impartiality, objectivism and integrity. They must also guarantee that the rights of persons taking part in clarification proceedings, even those who stand accused, are respected.

Impartiality and objectivism can be upheld through appointment of a multi-person entity reviewing complaints of mobbing, a so-called anti-mobbing commission. Depending on the structure and size of an organisation, an anti-mobbing commission may be a permanent body at the enterprise or be appointed ad hoc, i.e. whenever there is a complaint of mobbing. In the latter case, however, it is worth specifying in advance the course and time of appointing commission members. Information on membership and how an anti-mobbing commission is appointed may determine whether a victim or witness to mobbing will decide to report it. Efficient appointment of an anti-mobbing commission is in the interest of the employer, because any delay in reviewing a mobbing complaint and subsequent remedial action may lead to liability.

It is also good practice for an anti-mobbing commission to include a person with knowledge of labour law. This can be a company employee or independent expert outside the organisation. The assurance that an anti-mobbing commission includes a person with legal knowledge is a guarantee to the employer that commission actions as well as its decisions will comply with the law. This is significant to the extent that an employer may be held liable for illegal actions of an anti-mobbing commission, including infringement of personal rights of persons taking part in proceedings.

The above position was confirmed, among others, by the Court of Appeal in Kraków in a judgment dated 27 January 2016 (III APa 20/15). It stated that, in introducing an anti-mobbing procedure, an employer should respect the dignity and personal rights of employees, including the need to conduct proceedings in a manner consistent with standards of the rule of law, social justice and equal treatment. From this perspective it is important to ensure that the accused be accorded the right to defence. According to the court, it is unacceptable for an employee to learn of being accused only after a final guilty decision has been rendered.

In specifying principles underlying anti-mobbing proceedings, and employer should also obligate persons taking part therein to maintain confidentiality of information obtained during their course. It is also vital that access to the results of proceedings be restricted to authorised persons. Dissemination of negative assessments and results of anti-mobbing proceedings, particularly if they were not conducted impartially and the person accused was not guaranteed the right to defence, may result in such person raising claims against the employer for violating personal rights, in particular, dignity.

In introducing an anti-mobbing procedure, an employer should therefore take account of the need to respect the rights of all parties to proceedings.

Agnieszka Godusławska