HR in the Know 13/2024
Psychosocial factors in the work environment: contemporary approach. The proposed new definition of mobbing – employees will be able to more easily pursue claims for unwanted behaviour.
On 15 October 2024, the Labour Protection Council (the "ROP") adopted a resolution regarding its position on “Supporting actions leading to the reduction of adverse psychosocial factors affecting employees, including mobbing and discrimination, and workplace safety”. Also, at the beginning of November, the Minister of Family, Labour and Social Policy announced a contemplated revision of the current definition of mobbing (workplace bullying), so that, referring to press sources, the definition is clearer, more precise, and prevents acts that should not be tolerated or occur at all from being swept under the rug (https://www.pap.pl/aktualnosci/bedzie-nowa-definicja-mobbingu).The new regulations are expected to be ready in the coming weeks and will be urgently proceeded.
In the opinion of the ROP, despite the existence of tools for protecting employee rights in Poland, mobbing and discrimination continue to be serious problems in the workplace, affecting employees' mental health, the work environment atmosphere, and organisational efficiency. It is particularly recommended to: supplement the definition of the work environment with psychosocial hazards, intensify the education of employers and employees not only towards implementing anti-mobbing policies but, above all, towards shaping appropriate working conditions and methods to prevent the negative impact of psychosocial factors on employees, conduct long-term preventive programs concerning phenomena bearing the hallmarks of workplace violence, including cyberbullying, taking into account occupational risk assessment, training, and psychological support programs, have the State Labour Inspection conduct a review and standardisation of audit and post-audit procedures related to inspections covering issues of mobbing and unequal treatment in employment, especially the procedure for addressing complaints in this area.
We perceive the above approach as justified since labour law rooted in the 1970s, even after tuning and being adjusted to the EU law, do not keep up with the realities of the contemporary, evolving work environment and interpersonal relations, as well as the changed social perception and decreased tolerance for certain behaviours. Therefore, one can expect the fulfilment of the above declarations and the implementation of the long-standing need for a change the definition of mobbing and addressing its shortcomings. The complexity of psychosocial factors in the workplace and the diverse effects they have is illustrated by the following differentiation made by the court: “Mobbing should be distinguished from other phenomena, both those that have legal effects but are not mobbing, and those that are pathological in nature but do not have legal effects. The first group can include, for example, sexual harassment, discrimination, and physical violence. The second group of phenomena—not being mobbing and not having legal effects—can include: the feeling of discomfort at work associated with the so-called burnout syndrome, justified criticism in the workplace, stress at work, employers' uncultured behaviour, conflicts in the workplace, single acts of psychological violence, and managerial bullying. The burnout syndrome is related to frustration felt at work, caused by, among other things, lack of job satisfaction, a position inadequate to one's skills, or too low remuneration. The aim of justified criticism is to lead to better job performance by the employee, and it is not intended to humiliate or ridicule the employee or eliminate them from the team. Nor is it considered mobbing if an employee experiences stress, which is an inherent part of working in a market economy. Stress can be a result of mobbing, but not its cause. Mobbing should also be distinguished from the lack of culture on the part of the supervisor, manifested, for example, in the form of issued orders or differences of opinion regarding the way the work is performed. A characteristic feature of mobbing is its duration; therefore, single acts of psychological violence do not meet the requirement of this definition. Mobbing activities do not have to be of uniform intensity; they can be irregular and applied by a single person or several people acting in concert or not.” (Court of Appeal ruling from 17 November 2022, III APa 58/19). In practice, the primary flaw of the current definition of mobbing, which affects the employees' lack of success in pursuing claims on this basis, is the necessity of demonstrating the collective fulfilment of all five statutory prerequisites of the mobbing definition, namely: (i) the occurrence of actions and behaviours concerning the employee or targeted against the employee, (ii) involving bullying or intimidation, (iii) their systematic and long-term nature, (iv) aiming to humiliate or ridicule the employee, isolate them from coworkers, or eliminate them from the team,(v) and resulting in a lower self-evaluation by the employee of his professional abilities, a feeling of humiliation or ridicule, or the occurrence of isolation from coworkers or elimination from the team. According to court statistics, for this reason, the overwhelming majority of employees fail in this regard in disputes.
Nevertheless, an employee may pursue claims arising from Article 94(3) of the Labour Code as well as those specified in Article 24 of the Civil Code. The most recent case law of the Supreme Court opens the door for employees to have their claims automatically considered (depending on how the claim is formulated) in the context of the employer violating the employee's personal rights protected by Article 11(1) of the Labour Code if the claim for compensation for mobbing is rejected.
When the bully is not the employer, the employer's responsibility for the occurrence of mobbing is a liability for another person's act. It is debated whether the employer is liable here on a risk basis or if it is contractual liability, as it is directly related to the contractual obligation to prevent mobbing (Article 94(3)§ 1 of the Labour Code).
However, if the employer can demonstrate that they have taken genuine actions aimed at preventing mobbing, which are assessed as potentially effective, they may be relieved from liability.
To fulfil the employer's obligations in preventing mobbing in accordance with the Labour Code and to protect against employee claims, it is necessary to:
- implement a comprehensive anti-mobbing procedure, including general principles for reporting and conducting investigations (we usually recommend extending the scope to also cover discrimination and various types of unwanted behaviours, i.e., not only those that have legal consequences); procedures for quickly detecting and eliminating cases of mobbing should be established;
- provide employees with appropriate information and expectations regarding prohibited behaviours, complaint procedures, and investigative processes;
- define clear expectations for managers regarding responsibilities and duties in terms of management style;
- conduct periodic training sessions for both managers and employees;
- implement other measures tailored to the organisation of the given employer and the work environment.
Additionally, the employer should carefully select the managerial staff and define their competencies, prioritising the principle of counteracting mobbing. This includes, among other things, instructing employees and new hires on adhering to the principles of social coexistence against unwanted interpersonal interactions and the potential negative consequences of such behaviours.
Considering the proposed changes, we strongly recommend reviewing and updating the current policies regarding mobbing, discrimination, and other unwanted behaviours (these should be drafted in Polish and adopted by the local employer) to cover a broad spectrum of behaviours, ensure proper communication to employees, and facilitate effective countermeasures in the face of the announced future legislative changes, as well as to protect against potential legal proceedings.
