We wrote about the general assumptions of the draft law in the article ‘New definition of mobbing - how it will affect employees and employers’. However, as the obligations incumbent on employers may be significantly expanded, it is definitely worthwhile taking a closer look at the proposed regulations.

Existing responsibilities of employers in relation to mobbing

The Labour Code now stipulates in Article 94³ § 1 that employers must counteract mobbing. The concise wording of this provision has been clarified by the Supreme Court and the common courts. Clearly, the requirement is not limited to employees being mobbed by the employer personally or by individuals acting on his behalf. The requirement covers all manifestations of mobbing in the workplace, both horizontal and vertical. In other words, employers must ensure that mobbing does not occur in the workplace.

Furthermore, according to the Supreme Court, the obligation to prevent mobbing does not only apply when mobbing has already occurred, but also when implementing real and effective preventive measures. In one of its rulings (I PK 35/11), the Supreme Court stated that this duty should be fulfilled by providing appropriate training and implementing procedures to detect and combat mobbing.

Implementing the requirement to prevent mobbing can have positive legal consequences for the employer. This is because, if an employee brings court proceedings on the subject of mobbing, and the employer can demonstrate that the action taken and the preventive measures put in place were genuine and effective, the employer can free himself or herself from civil liability towards the employee.

Therefore, it can be concluded that the seemingly laconic requirement to prevent mobbing is, in fact, of great importance – if correctly implemented, it may allow the employer to escape civil liability. This requirement can be fulfilled in various ways, such as implementing anti-mobbing procedures, conducting investigations, and providing support to victims of mobbing to limit its effects. One of the reports of the State Labour Inspectorate indicates that, during workplace inspections, inspectors would also come across other preventive and corrective measures, such as internal, periodic, anonymous surveys and telephone counselling with a psychologist. This demonstrates that employers are already implementing measures beyond what is mandatory and making a genuine effort to prevent mobbing.

In summary, the Labour Code currently obliges employers to counter mobbing by introducing preventive and suppressive measures, allowing cases to be clarified and consequences to be drawn against the mobber. Conversely, there is no obligation to introduce corrective and supportive measures to help victims of mobbing. Furthermore, the regulations do not require employers to ensure that mobbing prevention meets certain formal requirements, such as  including anti-mobbing guidelines in specific internal regulations, or be subject to consultation with employee representatives.

Stipulated anti-mobbing obligations

The proposed regulations impose new obligations on employers, or modify existing ones. Among other things, employers will have to:

• Counter mobbing proactively and continuously through prevention, detection and an appropriate response, as well as through the introduction of corrective measures and support for victims of mobbing.
• Introduce the principles, procedures and frequency of anti-mobbing measures into the work regulations.

Employers’ duty to take corrective action and provide support to victims of mobbing

The current brief provision of LC Article 94³§ 1 will be replaced by the following regulation:

Employers must actively and continuously counteract mobbing through preventive measures, detection and an appropriate response. They must also implement corrective measures and provide support to those affected by mobbing.

In practice, this change is limited to expanding the obligation to counteract mobbing by requiring corrective action to be taken and support to be provided to victims of mobbing. In fact, under the current legislation, employers are already obliged to actively and continuously counteract mobbing by applying preventive measures, detecting mobbing, and responding appropriately when it occurs. Until now, this requirement has not resulted directly from the Labour Code, but from court decisions.

So, how can employers implement the new obligation discussed above? It seems that instruments such as these could be introduced:

• Fully or partially paid leave for the duration of the anti-mobbing investigation;
• Transfer of the employee (with his/her consent and current salary) to another department or organisational unit, both during the investigation and when it has been established that mobbing has occurred);
• Ensuring psychological support.

There is no doubt that selecting the appropriate measures to address mobbing and support its victims will be challenging. On the one hand, the costs of introducing them will have to be considered (paid leave and ‘well-being’ instruments incur costs for the employer), while on the other hand, such individuals will require rather than temporary support.

There will be an obligation to amend internal regulations

The second obligation that will be imposed on employers if the Ministry’s proposed amendments are enacted is the requirement to introduce provisions on the principles, procedures and frequency of anti-mobbing measures:

• In the work regulations – for employers obliged to introduce them (as a rule, those with at least 50 employees);
• In an announcement for other employers.

Currently, there is no formal obligation to implement appropriate anti-mobbing policies or procedures. However, this will become necessary once the amendment comes into force. It will also be necessary to determine how frequently measures such as employee training should be carried out.

Any amendments to work regulations must be agreed with the trade unions operating at the workplace. If there are no trade unions, the employer may implement anti-mobbing changes at his or her own discretion without consulting employee representatives.

Similarly, the announcement will be subject to agreement with trade unions. In this case, the Ministry that introduced the draft legislation opted for a negotiation mechanism identical to that used for concluding a remote work agreement. If it is not possible to reach an agreement on the content of the announcement with all trade unions, negotiations will only be conducted with representative employee organisations, each of which must represent at least 5% of local employees. If an agreement on the wording of the announcement cannot be reached within 30 days, the employer will be entitled to determine that wording independently.

In workplaces without trade unions, the announcement must be agreed with employee representatives. The legislator intends to impose an additional obligation on smaller employers in this manner, while larger employers, who are required to have work regulations, will not be burdened with this obligation. This seems to be a loophole in the regulation, which we believe should be resolved by removing the requirement to consult with employee representatives in each case.

The impact of internal regulations on an employer's potential liability for damages

As set out in the draft amendment bill, genuinely implementing the obligation to prevent mobbing and provide support to victims will be one of the prerequisites for employers to avoid liability for mobbing. However, exemption from liability will only apply if the mobbing originated from someone who did not manage the employee or was not in a superior position to him or her at work (i.e. horizontal mobbing). Therefore, it appears that the ability to exclude employer liability will be significantly limited in practice, as mobbing actions are often carried out by team managers who are in a superior official position to potential victims.

This is important because the amendment involves increasing the minimum benefit due to the victim of mobbing from one month’s wage to six months' wage. Furthermore, this increase is not based on the minimum wage, but on the actual salary of the victim.

A potentially higher minimum benefit for victims of mobbing will encourage employees to assert their rights. Therefore, it will be crucial for employers to implement appropriate measures to avoid such claims.

The planned changes will come into force in a short period of time

In the light of this, it is important to keep up to date with the ongoing legislative process, particularly as the consultation and opinion-seeking phase of the draft law has recently ended. Judging by the number of comments submitted by social partners and  the Ministry's stance on them, we can expect changes to the draft law in the near future. However, given the difficulties in predicting the actions of the Polish legislature, it is currently impossible to rule out any scenario. It is also difficult to indicate precisely when the new provisions will come into force.

A particularly sensitive issue for employers is the short timeframe for the new regulations to come into force. The legislator has allowed only three months for relevant changes to be made to internal regulations, or for new internal regulations to be introduced. However, in response to comments submitted by social partners, the Ministry has agreed to extend this period. Employers should therefore pay close attention to the amended draft bill and its provisions.

Finally, we strongly encourage you to follow the HRlaw portal, where we will keep you updated on any changes to the definition of mobbing and legislative developments in this area.

Tomasz Pleśniak

Przemysław Zając