The concept of mobbing has been systematised

In defining mobbing, the drafters have retained the previous open definition. At the same time, however, additional emphasis has been given to clarify that mobbing does not constitute incidental behaviour, even if it violates an employee's personal rights. This clarification seems unnecessary since persistence is already a condition for behaviour to be classified as mobbing. Therefore, it is evident that incidental behaviour is excluded. Similarly, the new draft indicates that mobbing must manifest as persistent harassment, which unnecessarily reiterates the characteristic indicated in the definition.

The new draft excludes behaviour that is ‘justified’ and expressed ‘in an appropriate form’. Examples of this include accountability for or criticism of work entrusted to the employee. It is clear that the drafters intend to allow employers to criticise employees’ work and hold them accountable for its performance without risking accusations of mobbing. However, it will be left to ordinary courts to assess whether such behaviour is justified and expressed appropriately in a particular case. Neither the draft nor its explanatory memorandum provides guidance on how to understand these concepts, which have not been previously adopted in the Labour Code.

Compensation for victims of mobbing

The provision regulating the minimum sanction for employers in the form of compensation for employee who are victims of mobbing has changed significantly. The current draft indicates that this compensation shall be at least 12 times the minimum wage established under separate regulations. At the current level of minimum remuneration, this equates to PLN 55,992.

Compared to the previous method of setting the minimum compensation amount (six times the salary of the victim of mobbing), there has been a return to determining the amount of compensation with reference to the minimum wage. This will certainly reduce the number of potential claims from employees earning significantly more than the average salary. Conversely, harassed employees earning below this amount may demand a higher amount than indicated in the previous draft.

It is important to note that the above amount is the minimum compensation payable. Thus, employees who have fallen victim of mobbing can claim compensation at a higher amount. Therefore, the aforementioned amount does not prevent employees from pursuing further claims for mobbing.

An employer can raise a claim against the perpetrator of the mobbing

The new draft explicitly allows an employer to claim recourse against the perpetrator of mobbing for loss suffered by the employer as a result of having to pay compensation or damages to the victim of mobbing.

It can be assumed that employers will frequently pursue recourse claims against employee mobbers. Nonetheless, in our view, the difficulty of obtaining satisfaction from assets of the employee in question will be significant. Even if a labour court awards an amount in favour of the employer, enforcement may be ineffective in practice.

The above matter presents additional interpretative difficulties due to a new provision stating that, in proceedings involving claims for mobbing, a court must assess whether any other violations of the victim employee's personal rights have occurred, as defined in Article 11¹ of the Labour Code. Therefore, if the court awards compensation or damages from the employer to the victim of mobbing for a violation of the above personal rights, it is unclear whether the employer would then be entitled to claim the same amount of compensation from the mobber, or how courts would determine the amount of compensation or damages in light of this rule. These doubts would not have arisen if the bill had referred, for example, to Article 23 of the Civil Code, which defines the concept of personal property, instead of to a Labour Code provision.

Admittedly, in our view, an employer can now raise claims against the mobber based on Civil Code provisions, which apply to matters not regulated by the Labour Code. However, the introduction of a specific basis for employers to pursue mobbing claims may positively impact the prevention of mobbing, as employees may be more careful to avoid such actions if they know that, once the employer has paid compensation or damages to the victim, he will be able to claim compensation for the damage directly from the mobber.

Changes to provisions regulating the court procedure

Compared to the previous version of the draft, provisions relating to court procedure in employment cases involving mobbing have also changed.

Firstly, the composition of the court has changed for cases involving personal injury and related claims. For example, cases concerning unlawful termination of an employment contract will now be heard by a judge and two jurors.

Secondly, cases concerning the protection of personal rights, mobbing, harassment and sexual harassment will be heard by a district court, regardless of the value of the claim. This puts mobbing cases on a par with employment cases concerning the establishment or reinstatement of employment. Currently, cases concerning the protection of personal rights, mobbing, harassment and sexual harassment fall under the authority of district courts only if the value of the claim sought does not exceed PLN 100,000. In cases where the amount claimed exceeds this level, the district court is competent to hear the case.

Extended period for the amendments to come into force

In accordance with the commitment of the Ministry of Family, Labour and Social Policy expressed during the consultation process, the period during which the amended Anti-Mobbing Act will take effect has been extended from three to six months. Such a period will be far more likely to allow employers to adapt to requirements arising from the change in the mobbing regulation.

Further comments on the draft law were published on the Government Legislation Centre website in August. Some of these comments have been taken into account, so we can expect another version of the draft in the near future. Of particularly concern is the inclusion of a comment advocating deletion of the regulation that employers are not liable for mobbing in certain cases if they can prove that they duly performed their duty to counteract it. This makes it all the more important for employers to monitor the draft’s further development and pay attention to the proposed regulations.

Tomasz Pleśniak, Przemysław Zając