In recent years, employers have increasingly made diversity & inclusion (D&I) a part of their HR strategy. Recent changes in the social and political climate might suggest that D&I is losing relevance. Nonetheless, it is important to remember that employment legislation itself plays a significant role in building an inclusive and diverse work environment. Indeed, D&I is not just the domain of soft HR actions: its pillars are embedded in the provisions of the Labour Code.

Ban on discrimination

One of the fundamental principles of labour law that protects diversity is that of non-discrimination.  Any discrimination in employment, whether direct or indirect, is unacceptable. This means that an employer may not treat an employee less favourably because of such characteristics as gender, age, disability, race, nationality, ethnic origin, religion or sexual orientation, to name a few. This is not a closed list: the Labour Code only mentions certain prohibited grounds for excluding a person.

Significantly, the ban on discrimination applies also to the pre-employment stage: the provisions of the Labour Code state clearly that all forms of unequal treatment are unacceptable when entering into employment. Therefore, job applicants who are at the stage of being recruited or selected, should also enjoy equal treatment.

The Labour Code distinguishes between direct and indirect discrimination.

• Direct discrimination occurs when an employee is treated less favourably than other employees in a comparable situation because of a specific characteristic.
• Indirect discrimination occurs when, as a result of an apparently neutral action, a disadvantageous disproportionality or a particular disadvantage arises for a specific group of employees (unless the action was objectively justified).

An employee who has experienced discrimination may claim compensation from the employer. In a dispute, the employee who considers himself or herself as having been harmed by the employer’s failure to observe the ban on discrimination, is required to give plausibility to the facts demonstrating the discrimination. The employer then bears the burden of proving that the discrimination did not occur.

The employer has a duty to prevent discrimination in employment. In practice, in order to ensure equal treatment of employees, the employer may therefore introduce a policy for preventing discrimination or train employees on equal treatment and how to respond to infringements.

Mobbing

Another issue, which is relevant from a D&I perspective, is mobbing; a matter that employers are required to address. While mobbing might not, in itself, be clearly associated with diversity or inclusivity, it often affects people from disadvantaged groups.

Mobbing involves actions or behaviours affecting or directed against an employee that:

• involve persistent and long-term harassment or intimidation of the employee
• invoke low professional self-esteem in the employee
• humiliate or ridicule the employee or have that intent, isolating or excluding the employee from his or her team of working colleagues.

The above prerequisites must occur together and they must be assessed on objective criteria. Mobbing does not have to lead to ill health. A specific behaviour may qualify as mobbing, even if no prohibited criterion of unequal treatment of employees may be identified.

An employee who has experienced mobbing has the right to claim the following from the employer:

• compensation
• monetary redress for the harm suffered, if the mobbing has caused ill health to the employee.

In the event of a dispute, it is the employee who has to bear the burden of proof regarding the facts that evidence mobbing.

Labour Code provisions require employers to take countermeasures against mobbing, but do not specify how the employer should put this obligation into practice. This duty should be implemented by taking real and effective steps (preventive measures) to ensure that mobbing does not occur in the workplace.

Good practices in this respect include, among other things:

• implementing internal regulations – an anti-mobbing policy
• training to raise employees’ awareness of mobbing
• putting in place a whistleblowing procedure
• training on the whistleblowing procedure in force
• monitoring adverse acts and, if any occur, preventing them from escalating.

D&I policy

Although the Labour Code does not require employers to establish diversity and inclusion policy, in practice, employers do often choose to implement a comprehensive D&I policy.

The implementation of such policy should take into account the needs of the organisation. Such a policy may, among other things, specify that the employer will provide: 

• training to raise employees’ awareness of diversity, prevention of discrimination and on building an inclusive culture
• a workspace adapted to the needs of disabled or neurodiverse people
• monitoring of the level of employees’ sense of equal treatment and belonging
• mechanisms for reporting incidents of undesirable behaviour.

Summary

The issue of diversity and inclusiveness is rooted in the provisions of the Labour Code regarding, for example, the prohibition of discrimination or prevention of mobbing. Consequently, there is no indication that it is losing its relevance. However, for diversity and inclusiveness to be furthered effectively, this must involve active initiatives and their implementation in continual employment-related activities. A diversity and inclusivity policy, which sets the framework for action in this area, may have an important role in this process.

Nina Bronisz