This meant that an employee who was the victim of mobbing but decided to remain on the job could pursue only a compensatory claim for pain and suffering. Consequently, employees who could not afford to lose their job typically abandoned any effort to seek justice before the courts. This is plain from the statistics from the Ministry of Justice, showing that only 102 cases seeking damages for mobbing were pending before the courts of first instance in 2018, while there six times as many cases seeking compensation for pain and suffering.

Elimination of the requirement for employees to quit their jobs before seeking damages might lead to an increase in the number of mobbing cases filed with the courts. But according to ministry statistics, few of these cases are won by employees (less than 7% in 2018). This is due to the difficulty employees have proving they were victims of mobbing, as well as the rigorous definition of mobbing as such, which requires that the detrimental phenomena constituting mobbing must be both persistent and long-lasting.

But this should not lull employers. Even if the employee does not ultimately prevail in court, the indirect costs of a long court battle can be huge. These arise for example from the absence of employees summoned as witnesses, and disruption of teamwork (often the victim demands testimony from all co-workers, including those working at foreign offices of the group). On top of that are reputational losses, which can negatively impact the firm’s ability to recruit new staff on the labour market. All of this should encourage employers to examine whether the way they operate contains the seeds for future mobbing claims.

The Labour Code (Art. 94³ §1) imposes a duty on employers to combat mobbing, but does not indicate what steps a company should take for this duty to be deemed fulfilled. In practice, employers often do little more than conduct one-off training on mobbing and introduce (or expand) a complaint procedure (unfortunately without further monitoring of whether the procedure is effective). The courts have pointed out in their rulings that formal establishment of anti-mobbing procedures which do not function in practice is insufficient to demonstrate that the employer has complied with its duty to combat mobbing and thus is released from liability to an employee suffering mobbing. Procedures are regarded as inoperative if they are not applied at all or if complaints filed by employees under the procedure are not properly considered. Actions by employers must be real and, examined objectively, must potentially be fully effective (e.g. Supreme Court of Poland judgment of 3 August 2011, case no. I PK 35/11).

Merely reacting to improprieties found to have occurred at the workplace, and taking follow-up actions, without any real preventive measures, has also been held to be inadequate (e.g. Supreme Court judgment of 21 April 2015, case no. II PK 149/14).

With the recent change in the law, it would be worthwhile to examine whether the very organisation of work and management methods adopted at various levels of the company generate a risk of mobbing, particularly in critical periods for enterprises such as restructuring and related reductions in headcount. We are not even referring here to extreme instances, such as the France Télécom case, where management were accused of imposing institutionalised mobbing to force employee attrition and thus reduce headcount in the group—mobbing that allegedly drove nearly 20 employees to suicide.

Occurrences of mobbing are fostered in particular by unclear subordination rules, definitions (if any) of employees’ job duties, and standards for evaluation of employees’ results. Generally, these issues should be covered in work rules or separate internal policies, which can then be cited in the event of a dispute.

Another good solution is to invest in training for managerial staff, but in addition to training on mobbing, employers should consider improving their managers’ soft skills of communication and team leadership. Attention to these soft skills is particularly vital considering that in recent rulings the labour courts have held that imposing excessive tasks, sending work-related emails to staff on their days off, and inadequate assessment of the results of employees’ efforts, can constitute mobbing (e.g. Lublin Regional Court judgment of 20 June 2018, case no. VIII Pa 86/18)—and these often result from disorganisation of work and mismanagement of subordinates.

It is apparent that mobbing can spring from a range of different causes, and thus employers cannot be content to rely on simple solutions for combatting this problem. The recent change in the regulations offers strong motivation for employers to examine how their enterprises truly function, and to include mobbing among other topics covered in their internal audits.

Katarzyna Magnuska