Mobbing and discrimination

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WARNING !!! automatic translation from Polish

April 2024

Hiring management staff

Pursuant to the judgment of the Supreme Court of February 22, 2023, I PSKP 8/22, the employer should select management staff and define their competences while respecting the principle of preventing mobbing, instructing employed persons on the need to comply with rules intended to counteract undesirable interpersonal relationships in the workplace and negative effects such behavior, and also establish procedures allowing for quick disclosure and elimination of manifestations of mobbing.

This ruling was made in relation to unprofessional behavior of the president of the Medical Chamber. In the justification for the court's ruling, we read that "while meticulousness, scrupulousness, or even setting high expectations may be the qualities of a good manager, they do not justify the conduct that was reprehensibly committed by the president of the Medical Chamber. All the more so because his academic degree (doctor of medical sciences), the position he holds (president of the Medical Chamber) and the position of an active doctor should determine J. K.'s awareness of the effects of the negative actions he constantly and unjustifiably performs (which was demonstrated in the evidentiary proceedings). assessment of the plaintiff's employee competences (the president expressed constant dissatisfaction, e.g. "it was necessary to correct the previously agreed text", which was then corrected again, he did not specify how it was to be done; he emphasized that "since you have completed higher education", this entitles you to excessive workload; he expected permanent availability and "being constantly ready to answer the business phone"). The indicated single events that constituted harassment or intimidation of an employee had nothing to do with the "authoritative management style", but were exceptional (negative) behavior, significantly different from normal behavior in a given workplace. There is no doubt, therefore, that the reprehensible behavior of a mobber, which is not justified by moral norms or the principles of social coexistence, has a negative impact on the victim's psyche due to their multiplication and duration of action.

March 2024

Unintentional nature of mobbing - judgment of the Supreme Court of February 22, 2023.

Mobbing in accordance with its code definition contained in Art. 943 of the Labor Code: "means actions or behavior relating to an employee or directed against an employee, consisting in persistent and long-term harassment or intimidation of an employee, causing him to lower his professional suitability, causing or intended to humiliate or ridicule the employee, isolating him or her or eliminating him from the team co-workers." This provision created a legal issue related to the unintentional nature of mobbing and the lack of effect, which had to be resolved by the Supreme Court. In the judgment in question, the Supreme Court stated that "recognizing a specific behavior as mobbing does not require either a finding on the part of the harasser of action aimed at achieving a goal (intention) or the occurrence of an effect. It is sufficient that the employee was the object of influence which, according to an objective measure, can be assessed as causing one of the effects specified in Art. 943 §2 of the Labor Code." The Supreme Court also found that when assessing behavior considered as mobbing, the "reasonable victim" model should be used, which allows separating behavior caused by the employee's hypersensitivity from behavior that actually constitutes mobbing. The Supreme Court also emphasized that the position it took in the above case results from the fact that in practice it is unlikely to prove intentional intent. In certain cases, mobbing may also involve taking actions within the limits of the supervisor's statutory rights. Therefore, the superior's behavior does not have to be illegal

February 2024

Unintentional mobbing

Mobbing can also be unintentional. This was confirmed by the Supreme Court in its judgment of February 22, 2023 (I PSKP 8/22). According to the Supreme Court, an employer is liable for the effects of mobbing also when the perpetrator acted unintentionally, i.e. did not seek to produce a specific effect (Article 943(2) of the Labor Code).

Recognizing specific behavior as mobbing does not require either the perpetrator's actions aimed at achieving a goal (intention) or the occurrence of an effect. It is enough that the employee was the object of influence which, according to an objective measure, can be assessed as causing one of the effects specified in Art. 943 § 2 of the Labor Code

January 2024

Prohibition of discrimination based on age

In the judgment of April 19, 2023 (II PSKP 72/22), the Supreme Court examined the case of dismissal of an employee due to reaching retirement age.

The plaintiff E.Ł. filed a lawsuit with the District Court in Warsaw for reinstatement at the defendant Tax Administration Chamber in Warsaw. According to the plaintiff, the dismissal was unjustified. The only reason for this arbitrary and discriminatory solution was her age.

The Polish legislator, implementing the provisions of Directive 2000/78 establishing the general framework conditions for equal treatment in employment and occupation, did not establish a general provision stating that the dismissal of an employee due to reaching retirement age does not constitute discrimination, because the termination of an employment relationship due to the acquisition of pension rights is justified by the objectives of the employment policy supported by the state, because the Labor Code does not expressly provide that reaching retirement age and acquiring the right to a pension constitutes a justified reason for terminating an employee's employment relationship. From this, it can be deduced - as a rule - that an employee who meets the conditions for acquiring a retirement pension will retain the right to work, which should not be limited by the permissibility of terminating the employment relationship only because of reaching retirement age or acquiring the right to retirement benefits.

December 2023

Manifesting political views by an employee

The Supreme Court in its decision of August 29, 2023 (II PSK 5/23) ruled that in accordance with Art. 183a § 1 of the Code of Criminal Procedure employees should be treated equally in terms of establishing and terminating an employment relationship, terms of employment, promotion and access to training in order to improve professional qualifications, in particular regardless of gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, religion, sexual orientation, employment for a fixed or indefinite period, full-time or part-time employment. It is indicated that political views should be related to issues relating to the state system, government activities, political parties and relations between states. Manifesting political views should be considered as going further than simply expressing them (especially in the private sphere, e.g. in conversations that are not of a business nature). At the same time, manifesting can also take a non-verbal form.

The subject of the proceedings was the issue of discrimination of the plaintiff due to his political beliefs. The plaintiff served as a councilor in the years 2010 - 2018 and was the only one on the District Council who was in opposition to the then government. In the course of the case, it was shown that the plaintiff was a "public enemy" for the starosta, and mainly for the Mayor. Since 2014, the plaintiff has been in constant political conflict with the Mayor and the current starosta, and as a political opponent, he often criticized their decisions.

According to the District Court, the starosta, by depriving the plaintiff of the position of Head of the Communication Department and transferring him to the official position of inspector, discriminated against him due to his political beliefs. The Supreme Court also shared this position.

November 2023

Defending women's rights in the army

By decision of October 31, 2023, No. 120.MON, the Minister of National Defense established

Council for Women's Military Service as a representative of women soldiers performing professional military service, which is a consultative and advisory body to the Minister of National Defense on matters relating to women's professional military service.

Moreover, the above-mentioned The decision of the Ministry of National Defense allows women soldiers to select (starting from the brigade level) a non-permanent representative dealing with matters of women's professional military service, hereinafter referred to as the "Plenipotentiary for Women's Military Service".

Council for Women's Military Service

The term of office of the Council is 5 years and begins on January 1 of the year following its election. The Council consists of women soldiers performing professional military service, selected during electoral meetings from the following structures of the Ministry of National Defense:

General Command of the Armed Forces in Warsaw together with subordinate organizational units - 10 members;
Operational Command of the Branches of the Armed Forces in Warsaw together with subordinate organizational units - 1 member;
Command of the Territorial Defense Forces in Zegrze together with subordinate organizational units - 2 members;
Inspectorate of Support for the Armed Forces in Bydgoszcz together with subordinate organizational units - 2 members;
Command of the Warsaw Garrison in Warsaw together with subordinate organizational units - 1 member;
Military Police Headquarters in Warsaw together with subordinate organizational units - 1 member;
Command of the Cyberspace Defense Forces Component in Legionowo together with subordinate organizational units - 1 member;
Central Military Recruitment Center in Warsaw together with subordinate organizational units - 2 members;
other organizational units - 4 members, in the following groups:

organizational units subordinate to the Minister of National Defense not listed in points 1-8, listed in the announcement of the Minister of National Defense on the list of organizational units subordinate to or supervised by the Minister of National Defense - 1 member,
organizational units supervised by the Minister of National Defense listed in the announcement of the Minister of National Defense on the list of organizational units subordinated to or supervised by the Minister of National Defense - 3 members, including 2 members from military universities, one of whom is a representative of professional soldiers - women professional military service for the duration of education at a military college, and the second is professional soldiers - women holding service positions at a military college;

organizational units of the Ministry of National Defense, hereinafter referred to as "organizational units" - 2 members.

The Council consists of the Chairman of the Council, two Vice-Chairmen of the Council and Members of the Council. The Council holds meetings in which, in addition to the Council Members, their Deputies and other persons invited by the Chairman of the Council take part.

The tasks of the Council include:

presenting a position to the Minister of National Defense, in the form of resolutions, on matters related to professional military service by women;
preparing analyzes commissioned by the Minister of National Defense regarding the performance of professional military service by women soldiers;
identifying factors influencing the performance of professional military service by female soldiers;
conducting educational activities;
permanent cooperation with the Coordinator for Equal Treatment in the Ministry of National Defense in matters related to the performance of professional military service by women soldiers, in particular by organizing joint community meetings, conducting thematic training and educational and information activities;
cooperation with organizational units, representative bodies of professional soldiers, non-governmental organizations, state and international institutions and their specialized agencies in the exchange of experiences resulting from professional military service by women soldiers;
developing proposals for detailed legal solutions related to professional military service by women soldiers;
informing women soldiers about activities undertaken by the Council in the field of matters arising from the performance of professional military service by women soldiers;
promoting professional military service of female soldiers;
developing documents necessary for its operation;
appointing, as needed, auxiliary teams from among its members necessary for its operation.

A candidate for a Member of the Council may be a soldier - a woman who has performed professional military service for not less than 6 years. Candidates for Council Members apply independently in organizational units and units h. Based on their applications, the head of the cell or organizational unit organizes a lower-level election meeting to elect a representative of this cell or organizational unit.

At the election meeting, one candidate for Council Member is elected from among the submitted candidates. The election is made in a secret ballot, by a simple majority of votes, in the presence of at least 1/2 of the professional soldiers - women serving in a given cell or organizational unit. The lower-level electoral meeting must be held by the end of September of the calendar year in which the term of office of the Council ends. If there are no applications from candidates for Member of the Council, the elections will not be held. At military universities, a separate candidate for Council Member is elected from among professional soldiers - women performing professional military service for the duration of their studies at a military university, and a candidate for Council Member from among professional soldiers - women performing full-time professional military service at a military university. In the case of candidates for Members of the Council elected from among professional soldiers - women studying at a military university, the limit on the length of professional military service does not apply.

The duties of the Chairman of the Council include:

coordinating the work of the Council and representing it before the Minister of National Defense;
convening meetings of the Council, at least once a quarter;
chairing Council meetings;
development, in consultation with the Director of the Operations Center of the Minister of National Defense, by November 30 of the previous year, of the Council's Annual Activity Plan for the following year;
documenting the work of the Council;
preparing and submitting to the Minister of National Defense a report on the activities of the Council by March 30 for the previous year;
developing and initiating training and educational projects and departmental programs that raise the level of collective awareness in the area of women's professional military service;
participation in training, conferences, workshops and other forms of exchange of experience at national and international forums in the field of professional military service of women;
permanent cooperation with the Coordinator for Equal Treatment in the Ministry of National Defense in the scope of tasks specified in § 7 point 5 and the Chairman of the Presidium of Representative Bodies of Professional Soldiers in the scope of tasks performed by the Council;
representing professional soldiers - women before the Minister of National Defense, other public authorities and non-governmental organizations;
assessing the status of compliance with the rights of professional soldiers - women;
analysis and collection of data on the situation of professional soldiers - women in the service environment;
giving opinions on draft legal acts regarding women's professional military service;
cooperation with state and international institutions and their specialized agencies in the exchange of experiences resulting from professional military service by women;
dissemination and coordination in the Ministry of National Defense of tasks resulting from national and international regulations regarding women's professional military service;
promotional activities for women's professional military service.

The tasks of Council Members include:

participation in Council meetings;
organization, after obtaining the consent of the relevant head of the organizational unit, in cooperation with the Plenipotentiaries referred to in § 27, of community meetings with soldiers - women performing professional military service;
collecting, archiving, updating and sending, via official means, to the Chairman of the Council, collective data of the Proxies referred to in § 27 from substantively supervised organizational units;
substantive supervision over the assigned Representatives referred to in § 27;
conducting training for the Plenipotentiaries referred to in § 27 in the field of women's professional military service;
providing information about the work of the Council, including the reviewed documents affecting the service of professional soldiers - women;
work in the established auxiliary teams referred to in § 7 point 11, or in the team referred to in § 36;
collecting from the Plenipotentiaries referred to in § 27 information regarding the professional military service of women and the reports referred to in § 33, and sending them via official means in a collective report by August 15 for the first half of the year and by February 15, respectively for the second half of the previous year to the Chairman of the Council;
sending a report on work for the Council for the previous year to the Chairperson of the Council by the end of February;
work and participation in promotional events organized by the Council;
promotional activities for women's professional military service.

Plenipotentiary for Women's Military Service

The elections for the Plenipotentiary for Women's Military Service are held from among professional soldiers - women of organizational units and subordinates. A candidate for the Plenipotentiary for Women's Military Service may be a soldier - a woman performing professional military service for not less than 5 years, who performs professional military service in the organizational unit where the electoral meeting is organized or in a subordinate unit. The Plenipotentiary for Women's Military Service is elected during an election meeting convened by the head of the organizational unit at the request of at least three professional soldiers - women entitled to participate in this meeting. The election is made by a simple majority of votes.

The tasks of the Plenipotentiary for Women's Military Service include:

initiating projects related to the organization of community meetings with professional soldiers - women in the organizational unit and chairing them - community meetings are organized after obtaining the consent of the head of the organizational unit in which the Plenipotentiary for Women's Military Service serves;
defending the rights of women soldiers performing professional military service and representing their interests before their superiors;
ongoing monitoring of the situation of professional women soldiers, preparing information and semi-annual reports on women's professional military service;
informing women soldiers in the organizational unit about activities undertaken in the Ministry of National Defense regarding women's professional military service;
participation in training for Plenipotentiaries for Women's Military Service;
preparing a note from each community meeting and, after reading it by the head of the organizational unit in which the Plenipotentiary for Women's Military Service serves, sending it via official means to the supervising Council Member;
participation in promotional events organized by the Council;
promotional activities for women's professional military service.

October 2023

EMPLOYEE DISCIPLINE AND MOBBING

The basic function of labor law is to protect the rights and interests of the weaker party in the relationship - the employee. As a result, a number of obligations have been imposed on employers. The wording of Article 94[3] of the Labor Code states that counteracting mobbing is among those mentioned.

"Mobbing" can be broadly defined as negative behavior of the employer in professional work situations that causes anxiety, fear and long-term concerns among some employees. However, we must not forget that the employment relationship is based on the employee's subordination to the employer while performing work. The managerial role of the employer is inextricably linked to, among others, with personnel management, which includes issuing business orders. Basically, disciplining employees or imposing disciplinary penalties on them does not constitute mobbing. However, as emphasized by the Court of Appeal in Białystok, in the judgment of June 30, 2015, if the employer's behavior is instrumental and not aimed at achieving the goals resulting from the concluded employment contract, it can be called mobbing (Judgment of the Court of Appeal in Białystok of June 30, 2015 r., III APa 6/15, LEX no. 1781864.). Therefore, as is often the case with a branch of law such as labor law, each case should be assessed ad casum. The distinction is assessed according to objective criteria. However, in no case may an employer, within the scope of his directive powers, engage in behavior that could violate an employee's dignity. In its judgment of December 8, 2005, the Supreme Court ruled that the issuance of lawful work orders by an employer does not, in principle, constitute a violation of an employee's dignity (personal rights), unequal treatment or discrimination, or mobbing (Judgment of the Supreme Court of April 22, 2015 ., II PK 166/14, LEX no. 1712815.). For example, an order to be on duty is absolutely legal. However, doubts may arise when on-call duties are always assigned to the same person, as it could be concluded that on-call duties are meaningless and are imposed on the employee only as an additional obligation. In view of the above, it can be generally stated that on-duty duty must be performed for some purpose, and not for its own sake. Similarly, as emphasized by the Court of Appeal in Poznań in its judgment, permitted criticism, control or issuing business orders to an employee to ensure proper organization of work cannot be considered a manifestation of mobbing. In the above-mentioned judgment, the court correctly found that reminding about timely performance of work, recording lateness, or obtaining the signature of superiors on the documentation do not constitute harassment of the employee (Judgement of the Court of Appeal in Poznań of January 13, 2021, III APa 12/20, LEX No. 3338711. ).

To sum up, because the employment relationship is inherent in the employee's subordination to the employer - an official order or other similar manifestations of disciplining employees - do not constitute elements of mobbing. However, if the employee proves, in accordance with the principle of onus probandi, that the employer's behavior was humiliating, degraded the employee's dignity or was intended to ridicule him in the eyes of the team, and was persistent, long-lasting, caused a low self-assessment of the employee's professional suitability and resulted or was intended to purpose of isolating or eliminating him - he will be able to effectively bring before the court an allegation of violation of Art. 94[3] of the Labor Code, i.e. mobbing committed by the employer.

September 2023

No effects of mobbing

In the judgment of February 22, 2023 (I PSKP 8/22) of the Supreme Court, it found that recognizing specific behavior as mobbing does not require either a finding on the part of the persecutor of action aimed at achieving a goal (intention) or the occurrence of an effect. It is enough that the employee was the object of influence which, according to an objective measure, can be assessed as causing one of the effects specified in Art. 943 § 2 of the Labor Code

August 2023

Employee hypersensitivity

When assessing behaviors considered mobbing, it is necessary to use the ideal model of "reasonable victim", which is to eliminate from the scope of the term cases resulting from the employee's hypersensitivity. Examining and evaluating the subjective feelings of a mobbed person cannot be the basis for determining liability for mobbing. Judgment of the Supreme Court of February 22, 2023 (I PSKP 8/22).

July 2023

Non-competition clause in contracts other than an employment contract

The Labor Code (consolidated text: Journal of Laws of 2022, item 1510, as amended) directly indicates several restrictions to which non-competition agreements between an employee and an employer are subject. The main limitation in the case of contracts concluded for the duration of the employment relationship and for the period after the termination of this relationship is the requirement to be in writing under pain of nullity. In addition, the limitations to which non-competition agreements are subject after termination of the employment relationship are:

the possibility of applying the non-competition clause only to an employee who has access to particularly important information, the disclosure of which could expose the employer to damage, - the obligation to pay the employee appropriate compensation for refraining from competitive activity,
the need to specify the duration of the non-competition agreement (it is not allowed to conclude such an agreement for an indefinite period).

The above restrictions will not apply in the case of a non-competition agreement concluded between the parties to a relationship established on the basis of a contract other than an employment contract (such as a contract of mandate, contract for specific work, contracts for the provision of services) due to the fact that these contracts are not regulated by labor law. In the case of relations other than an employment relationship, non-competition agreements may therefore be concluded on the basis of the principle of freedom of contract resulting from the Civil Code, regardless of the type of activity performed or access by one of the parties to important information. However, it should be remembered that in such situations, restrictions on the principle of freedom of contract will apply to the non-competition agreement, i.e.: the nature of the relationship, the law and the principles of social coexistence.

It is currently assumed in the judiciary that non-competition agreements after the end of a civil law relationship, unlike non-competition agreements after the termination of an employment relationship, may be gratuitous, so failure to award compensation to a person refraining from competitive activity will not always constitute a violation of the principles of coexistence social. Such a position was expressed by the Supreme Court, among others, in the judgment with reference number IV CSK 804/14. Of course, a breach will occur when the contractual provisions are clearly detrimental to one of the parties - and therefore contrary to the principles of social coexistence within the meaning of Art. 3531 in fine of the Civil Code.

In connection with the above, it should be stated that although the restrictions of the Labor Code do not apply to non-competition agreements concluded under civil law, the possibility of concluding them and shaping their scope is not unlimited.

Justyna Dabrowska

June 2023

Mobbing and harassment - similarities and differences

Mobbing is regulated in Art. 94[3] of the Labor Code (consolidated text: Journal of Laws of 2022, item 1510, 1700, 2140, of 2023, item 240), where the legislator placed e.g. its legal definition. Mobbing means actions or behaviors related to an employee or directed against an employee, consisting in persistent and long-term harassment or intimidation of the employee, causing him to underestimate his professional suitability, causing or aimed at humiliating or ridiculing the employee, isolating him or eliminating him from the team of colleagues.

Guided by the above definition, several prerequisites necessary for the occurrence of mobbing can be distinguished:

Occurrence of actions or behaviors involving or directed against an employee that:
They involve harassment or intimidation
They are persistent and long lasting
They result in an underestimation of the employee's professional suitability or result in humiliating or ridiculing the employee, isolating him or eliminating him from the team of employees.

The above conditions must be met jointly, and the burden of proof, i.e. demonstrating their occurrence, rests with the employee. The terms "persistent" and "long-term" may raise doubts - in each case, the nature of the actions is assessed individually by the court. The jurisprudence indicates that the long-term harassment or intimidation of an employee within the meaning of Art. 943 § 2 LC it must be considered on an individual basis and take into account the circumstances of a particular case. Therefore, it is not possible to rigidly indicate the minimum period necessary for mobbing to occur (cf. Supreme Court judgment of 20 October 2016, I PK 243/15).

Further provisions of the Act include the employer's obligation to counteract mobbing and possible steps that the employee may take in the event of its occurrence - seeking compensation or compensation.

Mobbing should not be equated with harassment, also referred to in the literature as stalking and regulated in Art. 190a of the Penal Code. It means persistent harassment of another person or a person close to them, evoking in them a sense of threat, humiliation or torment, justified by the circumstances, or significantly violating their privacy. There are similarities and differences between bullying and stalking. Both consist of legally permitted behaviors which, only when they occur continuously, turn into mobbing or stalking, respectively. A common feature is also the need for persistence and long-term actions.

Differences include, first of all, a different liability regime - in the case of mobbing, it will be civil liability, and in the case of stalking, it will be criminal liability. The group of entities that may be victims of undesirable behavior is also different - in the case of mobbing, it must be an employee (employed under an employment contract). The purpose or effect of the actions may also be different - the definition of harassment clearly indicates the arousal of a sense of threat, humiliation, anguish, or a significant violation of privacy, when dealing with mobbing, we can say, among others, about lowering the assessment of professional usefulness.

May 2023

Compensation for violation of the principle of equal treatment

According to Art. 183d of the Labor Code, a person against whom the employer violated the principle of equal treatment in employment has the right to compensation in the amount not lower than the minimum remuneration for work. In the judgment I PSKP 21/21, the Supreme Court indicated that it is this provision, and not the provisions of the Civil Code on liability for tort or for non-performance or improper performance of an obligation or for infringement of personal rights, that constitutes the basis for an employee's claim for compensation for violation of the principle of equal treatment in employment.

The Supreme Court emphasized that this compensation is to fulfill the function of compensation. Therefore,

when the employee in the action against the employer clearly distinguishes that he is seeking compensation under this provision both for material damage (lost earnings) and for moral harm (e.g. reduced self-esteem, arousing the feeling of being excluded from the labor market), it is he who should be awarded both compensation for material damage and compensation for harm - at least in the amount of the minimum remuneration for work.

As for the employee's ability to claim compensation under Art. 183d of the Labor Code, the only condition that must exist is to prove that the employer has violated the principle of equal treatment in employment. The Supreme Court clearly emphasized that the employer's liability is based on the principle of unlawfulness, and thus it is caused by a violation of the provisions of the Labor Code.

Justyna Dabrowska

April 2023

Different treatment in employment due to citizenship and historical events

In the judgment of May 7, 2019, file ref. II PK 31/18, the Supreme Court undertook to assess whether employing persons with a specific citizenship on different terms than persons without this citizenship constitutes a discriminatory practice.

The judgment was issued on the basis of the plaintiff's cassation appeal against the judgment of the District Court. The case concerned the application by the Consulate of different working conditions in relation to German citizens and non-German citizens - the employer paid the former remuneration in marks, and then in euros, and provided for a shorter working time than in the case of other employees. In addition, both groups of employees performed work in comparable positions. On April 1, 2000, the Consulate introduced uniform rules for remunerating employees, regardless of the criterion of citizenship. However, this change did not apply to already employed German nationals.

The court of first instance ruled that the persisting differentiation in relation to employees who were German citizens employed before 1 April 2000 could not be explained by the protection of acquired rights, and therefore the employer did not seek to remove the state of discrimination. The second-instance court changed the judgment of the first-instance court in the part in which it concerned the qualification of the legitimacy of maintaining pay differentials, agreeing with the position that in this case there was protection of rights acquired by employees employed before the change in the collective agreement. In the opinion of the court, not changing the conditions of remuneration of these employees protected them against arbitrary limitation of the right acquired, i.e. the amount of remuneration.

The Supreme Court agreed with the view that historical events cannot justify the differentiation of employees in remuneration, if the employer adopted a passive attitude towards the problem and did not take actual actions to eliminate the pay gap. However, the court pointed out that this regularity refers to the principle of equal treatment in employment and does not necessarily have to be related to the prohibition of discrimination.

The obligation of equal treatment of employees by the employer is extensive - it does not exist only at the time of concluding the contract, but also before the employment relationship is established, during the entire duration of this relationship and at the time of termination of the employment relationship, and the employer's task is to maintain the state of equal treatment throughout this period. period. Moreover, the intention of the employer remains irrelevant to the assessment of the event, therefore the fact that from the date of the amendment of the collective agreement the employer did not show any intention to discriminate against employees on the basis of nationality cannot affect the decision whether discrimination has taken place.

The court emphasized that the principle of protection of rights acquired rightfully did not apply in the present case. The employer was only dealing with binding contractual provisions which he had the power to amend. The Supreme Court did not find objective criteria justifying the different treatment of the two groups of employees, the application of which would be dictated by proportionality and necessity. Therefore, the employer's action consisting in maintaining the state of differentiated treatment of German employees employed before 1 April 2000 was indirect discrimination - between the two groups of employees there was a disproportion unfavorable for one of them.

March 2023

Definition of mobbing in jurisprudence

The Court of Appeal in Warsaw, in its judgment of November 17, 2022 (III APa 58/19), attempted to define mobbing. According to the Court, mobbing is characterized by continuous impact on the employee, persistence and long-term harassment or intimidation of the employee, undertaken in order to humiliate or ridicule, causing specific effects on the employee's health. Therefore, the essence of mobbing is persecution, harassment, mental maltreatment, and its feature is the victim's defenselessness against the mobber. It should be emphasized that Art. 943 § 2 LC introduces the term "long-term" harassment as one of the conditions for recognizing a specific behavior as mobbing. This provision does not specify how this phrase should be understood, which must be assessed each time by the court in the circumstances of a particular case, but it should be taken into account that the long-term behavior considered mobbing should be considered simultaneously with their persistence, which is understood as a significant intensification of ill will on the part of the mobber, who aims to lower the victim's self-esteem and eliminate him from the team. Persistence means prolonged, constantly repeated and inevitable, from the victim's point of view, behaviors that are burdensome and continuous. However, the harassment referred to in Art. 943 § 2 of the LC, in accordance with the natural meaning of the word, means tormenting, disturbing someone, not giving a moment of peace, as well as constant tormenting, disturbing or teasing someone (inflicting distress on them). Moreover, the premises of "persistence" and "durability" interact with each other. They cannot be considered separately. Therefore, the intensification of negative behaviors leads to considering a shorter period as long-term than in the case of their lower intensity.

Mobbing should be distinguished from other phenomena, both those that have legal effects, but are not mobbing, and those that are pathological, but do not have legal effects. The first group includes, for example, sexual harassment, discrimination, and physical violence. The second group of phenomena - activities that are not mobbing and do not have legal effects include, for example: a sense of discomfort in the workplace related to the so-called professional burnout syndrome, justified criticism in the workplace, stress in the workplace, uncultured behavior of the employer, conflicts in the workplace, one-off acts of psychological violence, managerial maltreatment. The professional burnout syndrome is associated with frustration felt in the workplace, and caused, among others, by dissatisfaction with the job performed, position inadequate to the skills held, or too low remuneration. The purpose of legitimate criticism is to make the employee do their job better, not to humiliate or ridicule the employee or eliminate them from the team. The fact that the employee feels stress, which is an inseparable element of work in a free market economy, will not be mobbing. Stress can be a result of bullying, but not its cause. Mobbing should also be distinguished from the lack of culture of the superior, manifested, for example, in the form of orders or differences of opinion as to the manner of performing work. A feature of mobbing is its duration, therefore one-time acts of psychological violence do not meet the requirement of this definition. Mobbing activities do not have to be uniform in intensity, they can be irregular and used by a single person or several people acting in agreement or without.

February 2023

Remote work and discrimination in the Labor Code

The Labor Code Act of June 26, 1974 indicates the prohibition of discrimination and equal treatment in employment as one of its flagship principles. Article 113 of the Code presents an open catalog of discrimination criteria, which include, in particular, gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, denomination, sexual orientation, employment for a definite or indefinite period, full-time or part-time employment. Article 183a of the Act clearly, through definitions, distinguishes and clarifies the concepts of direct and indirect discrimination.

These basic and fundamental code principles also apply to remote work. Any discrimination, whether direct or indirect, is unacceptable. This means, above all, that the selection of employees who will work remotely must be done in a clear and fair manner, on the same terms for all. Such a decision is to be based on objective and rational premises, e.g. the nature of the work. As an example, manual workers can be indicated here, whose remote work would be pointless and the employer's refusal to perform it is not a sign of discrimination. An employee performing work in the workplace cannot be treated differently from an employee working remotely, unless it results from obvious differences in the performance of work (e.g. fruit Thursdays in the office). Each case should be treated and analyzed individually.

It is important to emphasize that the aforementioned Art. 183a of the Code modifies the distribution of the burden of proof provided for in Art. 6 of the Civil Code, from which it follows that the burden of proving a fact lies with oneself, which derives legal consequences from it. In the case of discrimination in employment, the employee is only required to present facts from which it can be presumed that it occurs, and the employer must prove that the employee is not discriminated against (E. Maniewska [in:] K. Jaśkowski, E. Maniewska, Commentary updated to the Code LEX/el 2022, Article 18(3(a)), Article 18(3(b)), Article 18(3(c)), Article 18(3(d)), Article 18(3(e))).

In conclusion, it is worth mentioning that on June 7, 2022, the Sejm received a government draft amending the Labor Code Act and some other acts (paper no. 2335). The legislative process is now in its final stages; the Senate made minor amendments to the bill. The amendment largely concerns the regulation of the institution of remote work - the legal order will include its definition, and the place of work will depend on the agreement between the employer and the employee.

January 2023

Abuse of the law

One of the provisions of the preliminary provisions of the Labor Code is Art. 8, which is equivalent to Art. 5 k.c. It contains two equivalent and separate, though interrelated, general clauses - the socio-economic purpose of law and the principles of social coexistence. By introducing indefinite phrases into the text of a legal act, the legislator allows for interpretation taking into account extra-legal norms - moral, customary and customary. The application of the construction of principles of social coexistence may only serve "as a means of control and correction of the exercise of a subjective right." (K. Rączka [in:] M. Gersdorf, M. Raczkowski, K. Rączka, Labor Code. Commentary, 3rd edition, Warsaw 2014, art. 8.). "This regulation does not apply to situations where a specific entity violates the provisions of substantive law. The construction includes cases in which the behavior of a specific entity formally meets all the requirements provided for by law, while for other - non-legal - reasons (e.g. social or moral) this behavior does not deserve legal protection." (Decision of the Supreme Court of November 24, 2021, III PSK 115/21, LEX No. 3333815.). As emphasized in the jurisprudence - adjudication on the basis of art. 8 k.p. always leads to a weakening of the principle of legal certainty, which is why this instrument should be used exceptionally and only in an inseparable connection with all the circumstances of a particular case. This is justified by the fact that "the norm of art. 8 k.p. means depriving a given entity of the possibility to exercise the right that it is entitled to in the light of the provisions of the law in question." (Judgment of the Supreme Court of February 8, 2018, I PK 350/16, LEX No. 2483350.).

Referring to the socio-economic purpose of the law, it should be noted that in this part the provision is rarely used. "The clause of the socio-economic purpose of law cannot be understood in the current system of the Republic of Poland as a rule according to which each entitlement (subjective right of an employer or employee) must always serve both a social and economic purpose. This would mean, for example, that an employee could not exercise his or her right to annual leave only in his/her personal interest (...)." (G. Goździewicz, T. Zieliński [in:] Labor Code. Commentary, ed. VII, ed. L. Florek, Warsaw 2017, art. 8.). However, there is no basis to claim that it is now a completely dead provision. The courts refer to the discussed clause most often when ruling on an alternative possibility of reinstating an employee to work or when considering the issue of trade union protection. In the judgment of May 13, 2021, the Supreme Court stated that "the intentional coverage of an employee with trade union protection by the management board of a trade union organization, undertaken solely to protect against dismissal and having nothing to do with the idea of trade union protection of the durability of the employment relationship, is in contradiction with socio-economic purpose of this right." (Judgement of the Supreme Court of May 13, 2021, III PSKP 17/21, OSNP 2022, No. 4, item 33).

The issue of possible abuse of the law is undoubtedly easiest to explain with an example. Suppose that X is a construction worker and Y is the employer who employs him. X, in July 2015, suffered a serious accident at work while performing it. Y was away from the workplace at that time, having learned about the accident, he ordered the other employees to wait for him (even though he was in a town 50 minutes away from the place of the accident) and only he himself transported X to the hospital in a company van. X sued Y for the payment of the pension, the action was brought in January 2019. The claimant's claim for the payment of the pension has expired. The plaintiff knew about the damage and the person responsible for it already on the day of the accident. Thus, in July 2015, the three-year limitation period for claiming a disability pension began to run. The defendant raised the objection of limitation, however, we can unquestionably state that this objection was, however, contrary to the principles of social coexistence. The defendant's conduct after the accident was inappropriate - as the employer, he grossly violated the duty to care for their life and health. It is also significant that the victim suffered significant damage to health.

December 2022

The scope of protection of an employee acting for the benefit of a job applicant whose candidacy was rejected due to pregnancy

(Judgment of the Court of Justice of 20 June 2019, C-404/18)

Relatively recently, in 2019, the Court of Justice of the European Union (hereinafter: the CJEU) received a preliminary ruling from the Belgian national court regarding the interpretation of the provision of Directive 2006/54/EC on the principle of equal treatment of women and men in the form of Art. 24. This regulation introduces an obligation that "Member States shall introduce into their national legal systems such measures as are necessary to protect employees, including employees who are employees' representatives, provided for by national legislation or practice, against dismissal or other unfavorable treatment by the employer in response to a complaint within the company or any legal proceedings to ensure compliance with the principle of equal treatment.'.

The facts underlying this question for a preliminary ruling referred to the situation in which two ladies (T. Vandenbon and Ms. J. Hakelbracht) found themselves in connection with the recruitment procedure for the position of a clothing store saleswoman. The first of the above women, due to the performance of her managerial duties, decided to employ Ms. Hakelbrach, who, importantly in the context of the present case, was three months pregnant at the time. However, her choice was not approved by the company managing the individual clothing stores. Ms Vandenbon then informed Ms Hakelbracht that her candidature had been rejected as a result of her pregnancy. The job applicant consequently decided to lodge a complaint with the relevant institute against the company, for which the company also blamed T. Vandenbon. The woman was subsequently dismissed, citing, among other reasons, unsatisfactory performance of her duties, lack of respect for safety rules, substandard maintenance of the store and lack of order. As a result, both ladies, about whom the analyzed judgment is concerned, decided to go to court. In the course of the proceedings, the Belgian court asked how the scope of Art. 22 sec. 2 of the Belgian Gender Equality Act is related to Art. 24 above directive. This provision protects only official witnesses of proceedings pending as part of discrimination committed by the workplace against another employee.

Subsumption of the CJEU led to an important conclusion, as "Article 24 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation should be interpreted in so far as it precludes a provision of national law, such as that at issue in the main proceedings, under which, where a person who considers that he has been the victim of discrimination on grounds of sex has lodged a complaint, the side, is protected from reprisals by the employer only if he acts as a witness in the examination of that complaint and his testimony complies with the formal requirements provided for in those provisions."

Undoubtedly, it can be said that the CJEU has confirmed the tendency of Community law to protect employees as broadly as possible against various forms of discrimination. It should be noted that it is also postulated to care for the situation of those employees with whom the cases reported to the court are indirectly related.

November 2022

Employee discipline and mobbing

The judgment of the Court of Appeal in Poznań of 13 January 2021, file number III APa 12/20, deals with the difference between the employer's behavior consisting in disciplining an employee and an activity that may be considered mobbing. In the assumptions of the adjudicating panel, criticism or control, or issuing lawful official orders, cannot be considered a manifestation of mobbing. Similarly, reminding about the timely performance of work, the need to register delays or obtain the signature of superiors on the documentation do not usually constitute a form of harassment of an employee. In the factual state which is the basis for issuing the analyzed judicature, the practice of double signing documents and recording delays was also applied to other collaborators, which does not allow to believe that the claimant became a victim of mobbing. The court also pointed out that for the mobbing to occur, the claimant would have to prove that the employer's behavior was humiliating or offensive to her dignity.

In addition, the judges ruled that the assessment of whether the employee was harassed and intimidated and whether these activities were aimed at and could have led to or led to an underestimation of his professional suitability, to his humiliation, ridicule, isolation or elimination from the team of colleagues must be based on objective criteria. In a given factual state, the claimant's position was based on individual feelings, which cannot be related to general practice.

In the court's ruling, there was also a thesis that the definition of mobbing implies the need to demonstrate not only the unlawfulness of the action, but also its purpose (including: humiliation, ridicule, isolation of the employee) and the possible effects of the employer's actions (this is about health disorders).

Consequently, the adjudicating panel pointed out that the feature of mobbing is, first of all, the continuity of impact on the employee, which excludes one-off acts beyond the scope of this phenomenon.

Summarizing, therefore, the position of the court of appeal regarding the delineation of the boundary between disciplining an employee and mobbing, it should be concluded that, in the assumption of the judicature, the features, i.e. specific determinants, of mobbing are:

criticism or control in the scope prohibited under the employment relationship;
causing humiliation on the part of the employee;
a goal, such as embarrassing an employee, which is additionally assessed according to objective criteria;
possible effect in the form of health impairment in the employee;
continuity of impact on the employee.

Certainly, the judgment of the SA in Poznań contributed to the clarification of the concept used by the legislator in Art. 94 (3) of the Labor Code. Judicature thus fulfills the framework of the statutory definition, influencing the practice of applying the provisions relating to mobbing.

October 2022

Wage discrimination

Pay discrimination is one of the most common forms of discrimination in the workplace. According to the Labor Code, equal treatment in employment is the basic right of every employee. Under no circumstances may the employer make the amount of remuneration dependent on his private sympathies or employee characteristics not related to the quality of the work performed, such as: age, gender, religion, national or racial affiliation, sexual orientation and political views.

It is clear that not every pay gap will be discriminatory in the workplace. Salaries may vary due to the qualifications of employees, specific characteristics or conditions of the work performed and the length of service. As stated by the Supreme Court in the judgment of 7 April 2011, reference number: I PK 232/10 - we can speak of discrimination in remuneration only when the employee's remuneration is noticeably different from the remuneration of other employees performing work of the same or equal value.

There may also be a situation where wage discrimination may still occur despite equal main wages. As stated by the Supreme Court in the judgment ref. No. I PK 100/12 of 22 November 2012, when determining whether a company is subject to wage discrimination, in addition to the amount of salary, one should also take into account whether the persons concerned use, for example, a car, a flat and a company telephone. The unequal distribution of official privileges and bonuses can therefore have as serious consequences as the differences in main pay.

Most experts agree that the current regulations do not provide sufficient protection against discrimination in the workplace. In many companies there is still wage discrimination, often on the grounds of gender. It should be remembered that in the event of undercutting the salary by the employer, the employee has the right to claim compensation for wage discrimination through a claim brought to the court or by referring the case to the National Labor Inspectorate.

September 2022

Criteria for the selection of employees for dismissal and discrimination

According to the judgment of the Supreme Court of February 19, 2021 (file reference number I PSKP 9/21), the employer cannot arbitrarily dismiss a specific employee, but must follow certain criteria to evaluate other employees to be dismissed. Otherwise, the employer will discriminate against the arbitrarily dismissed employee. If the employer selects an employee from among other employees working in the same position, the reason cannot be solely organizational changes in the workplace. They must also be the above-mentioned specific and employer-defined criteria. These criteria must be specific enough for the labor court to be able to assess their legitimacy in future, potential proceedings - so they cannot be arbitrary.

In addition, when assessing the legitimacy of dismissing a specific employee selected on the basis of specific criteria, the individual situation of the employee is also taken into account. As the Supreme Court points out: "As a consequence, in the event of termination of employment for organizational reasons attributable to the employer, it is assumed that providing the employee with a written declaration of the employer's will - as the reason for termination - of these changes and proving their existence before the labor court. does not always mean that the employer complies with the formal requirement of the Labor Code and that the termination itself is justified in (...). For if the liquidation concerns only part of a larger number of the same or similar jobs, the reason for the termination specified in this way explains the necessity to implement the dismissal procedure, but does not explain why the employment relationship with a specific employee was terminated and other persons holding the positions covered by the reduction were left in employment. ". This means that the employer must justify why it was this employee who terminated the contract.

August 2022

Does granting additional maternity leave only to mothers constitute discrimination against an employee on the basis of gender?

For the analysis indicated in the title of the issue of asumpt, see the judgment of the Court of Justice of the European Union of November 18, 2020 (judgment of November 18, 20020, case C-463/19 Syndicat CFTC de la Caisse primaire d'assurance maladie (CPAM) de la Moselle / CPAM de Moselle), in which the CJEU explicitly supported the possibility of "reserving" additional maternity leave for mothers raising children.

The CJEU resolved its considerations following a request for a preliminary ruling from the French labor court, which raised the issue of refusing to grant leave to fathers in order to protect the special relationship between a woman and her child in the period after pregnancy and after childbirth. Doubts were raised by compliance with the principle of non-discrimination in a given state of affairs, often emphasized on the basis of EU law and the jurisprudence of the CJEU. An example of such regulations may be, for example, Art. 18 of the Treaty on the Functioning of the European Union, which prohibits any discrimination, and also the provision of Directive 2006/54 / EC on the implementation of the principle of equal opportunities and equal treatment of men and women in the field of employment and work.

In the opinion of the CJEU, the additional maternity leaves provided for in the law may be dedicated only to mothers, provided that at the same time the condition stipulating that female employees will take the leave not so much as a parent, but due to the consequences of pregnancy and maternity, is met. At the same time, the CJEU emphasized that additional maternity leave cannot be considered to fulfill the above-mentioned objective only because it is obtained just after the basic maternity leave.

In view of the above, it can be concluded that the CJEU requires each time to look at a specific institution of national law through the prism of the goal it is to pursue. Thus, the reasoning of the EU judicature takes on the character of a teleological interpretation, as is often the case with other judgments.

July 2022

Works of the same value and works of equal value within the meaning of Art. 18 (3c) § 1 of the Labor Code

Employees have the right to equal remuneration for equal work or work of equal value. Works of equal value are works whose performance requires comparable professional qualifications, confirmed by documents provided for in separate regulations or by practice and professional experience, as well as comparable responsibility and effort. Following the decision of the Supreme Court of 27 January 2022 (file reference number II PSK 199/21, LEX No. 3340985), the same works are those which are the same "in terms of the type, qualifications necessary for their performance, conditions, in which they are provided, as well as - quantity and quality. Thus, a job position may be a benchmark for determining "equal work", but it is not exclusive. Work that is identical in terms of the type and qualifications required to perform them at the same job positions operating at a given employer may differ in quantity and quality (understood as the manner of fulfilling the duties entrusted), and then they are not identical work within the meaning of Art. 183c § 1 of the Labor Code When assessing the right of employees to remuneration for equal work, it is therefore necessary to take into account the quality and results of the work performed ". Similarly, the Supreme Court stated in the judgment of 8 May 2019 (file no. VI P 271/18), saying that "identical work is in turn the same work in terms of type, qualifications necessary to perform them, conditions under which are provided as well as their quantity and quality. The work that is identical in terms of the type and qualifications required to perform them at the same positions at the given employer may differ in quantity and quality, and then they are not identical work within the meaning of Art. 18 (3c) § 1 of the Labor Code ". The Supreme Court also indicated that "employees are entitled to equal remuneration not only for work of" equal value "(i.e. for work that is equal in terms of actual duties and burdening them), but also for work" of the same "(i.e. identical in terms of the method and objective quality of its performance, and thus its usefulness for the employer) "(judgment of the Supreme Court of May 8, 2019, file ref. VI P 271/18).

June 2022

Sexual harassment of an employee

Pursuant to the judgment of the Supreme Court of November 7, 2018, II PK 229/17 in the case concerning violation of the principle of equal treatment by sexual harassment, the employee is to substantiate the occurrence of sexual behavior and his objection to such behavior (e.g. by avoiding contact with the perpetrator or non-reciprocity of the perpetrator's behavior, Art.183a § 6 LC). In such a case, the employer bears the burden of proving that there has been no breach of the principle of equal treatment, with the exception of the possibility of justifying sexual harassment by any objective reasons (Article 183b § 1 in fine of the Code of Civil Procedure in conjunction with Article 14 (3) of the Act of 3 December 2010. on the implementation of certain provisions of the European Union in the field of equal treatment, uniform text: Journal of Laws of 2016, item 1219). Article 18 3b § 1 in fine of the Code of Civil Procedure, in the case of sexual harassment (Article 18-3a § 6 of the Code of Civil Procedure), which, due to its obvious unlawfulness, cannot be justified by any objective reasons, must be supplemented by the regulation of Art. 14 sec. 3 of the Act of December 3, 2010 on the implementation of certain provisions of the European Union in the field of equal treatment, according to which, in the event that the violation of the principle of equal treatment is substantiated, the entity accused of violating this principle is required to prove that it has not breached it .

May 2022

The principle of equal treatment in employment and the prohibition of discrimination

Pursuant to Art. 18 (3a) of the Labor Code, employees should be treated equally as regards entering into and terminating the employment relationship, terms of employment, promotion and access to training in order to improve professional qualifications, in particular regardless of sex, age, disability, race, religion, nationality , political beliefs, trade union membership, ethnic origin, religion, sexual orientation, employment for a fixed or indefinite period, full-time or part-time employment.

Equal treatment in employment means non-discrimination in any way, directly or indirectly, on the above grounds. Following the judgment of the Supreme Court of May 9, 2019 (file reference number III PK 50/18, OSNP 2020, No. 5, item 42), "under the concept of" the principle of equal treatment in employment "under Art. 18 (3d) k.p. one should understand both discrimination on the basis of the forbidden differentiating criterion (Article 18 (3a) of the Labor Code) and other, apart from discrimination, cases of unequal treatment in employment. (...) This principle should not be reduced to the prohibition of discrimination on the basis of the forbidden differentiation criterion, because this principle also covers other, apart from discrimination, cases of unlawful unequal treatment in employment ". Therefore, it is possible to break the principle of equal treatment in employment by treating an employee differently due to something other than, for example, gender, age, or full-time or part-time employment. In other words, the regulation does not indicate all the forbidden differentiation criteria.

What is the difference between discrimination and unequal treatment?

Discrimination is a qualified form of unequal treatment. Moreover, "the provisions of the Labor Code relating to discrimination do not apply in cases of unequal treatment not caused by the cause recognized as the basis for discrimination. Therefore, if an employee alleges a breach of the provisions relating to discrimination, then he should indicate the reason for which he was discriminated against, or at least the circumstances that make it possible to identify such a reason "(judgment of the Supreme Court of May 9, 2019, file ref. III PK 50 / 18, OSNP 2020, No. 5, item 42).

April 2022

Mobbing and health disorders

According to the Labor Code, the employer is obliged to counteract mobbing. Mobbing means actions or behaviors related to an employee or directed against an employee, consisting in persistent and prolonged harassment or intimidation of an employee, causing him to underestimate his professional suitability, causing or aimed at humiliating or ridiculing the employee, isolating him or eliminating him from the team of colleagues. Therefore, mobbing is, for example, ridiculing, intimidating or isolating from colleagues.

An employee whose mobbing has caused a health disorder may claim an appropriate sum from the employer as financial compensation for the harm suffered. However, health upsets or medical issues cannot be the only indicator that mobbing has taken place.

According to the decision of the Supreme Court of 9 July 2020 (file reference number III PK 112/19), "Mobbing is a complex legal concept. The determination of his occurrence was dependent on the occurrence of a number of behaviors qualified by law in time. This means that the "medical thread" is not independent and determinative. The conviction of an expert doctor that the development of the disease is dictated by the work environment does not prejudge the occurrence of mobbing. The qualification in this regard is not made by an expert doctor, but by a court, after a comprehensive consideration of the facts, and the expert opinion is one of the elements of the evidence". Moreover, the same provision indicates that "the definition of mobbing under Art. 943 § 2 of the Labor Code has not been linked to health effect. This element occurs only at the claim stage. This means that the definition of mobbing is one thing, and the possibility of seeking redress is another thing. It cannot be ruled out that mobbing will not lead to health disorders, however, the conditions under Art. 943 § 2 of the Labor Code The right to benefit under Art. 933 § 3 of the Labor Code requires the cumulative fulfillment of two factors - the fulfillment of the prerequisites for mobbing, as well as the emergence of a health disorder ".

March 2022

Compulsory vaccinations and discrimination

Pursuant to the Regulation of the Minister of Health of December 22, 2021, amending the regulation on the declaration of an epidemic in the territory of the Republic of Poland (Journal of Laws, item 2398 - hereinafter referred to as the "Regulation"), compulsory vaccinations against COVID were introduced from March 1, 2022. -19 for people working in the medical profession, people employed in entities providing pharmaceutical services and for students studying in the fields of preparation for the medical profession. This amendment raises some people's doubts about the breach of the principle of non-discrimination of employees. Below we explain what to expect from the new changes and why we cannot speak of unlawful discrimination in the context of the new vaccination obligation.

The above-mentioned groups are required to undergo vaccination, which can be confirmed by an EU digital certificate, until March 1, 2022. This obligation is suspended for people who have not passed the diagnostic test for SARS-CoV-2 by 1 March more than 6 months. The regulation indicates that the only persons exempt from the obligation to vaccinate are those who have contraindications to vaccination in terms of their health condition.

Despite the fact that the ordinance does not specify any sanctions for failure to comply with the vaccination obligation, the published interpretation of the Ministry of Health indicates that failure to vaccinate against COVID-19 by those obliged to do so may result in a change in the work organization of such an employee or even termination of the employment relationship. Therefore, the decision on how to deal with unvaccinated workers depends on the employer who, pursuant to Art. 221 § 4 and § 5 of the Labor Code may require the employee to submit a statement to verify the fulfillment of this obligation.

The new regulation does not limit the employer's prohibition of discrimination. If an employer decides on the consequences for an unvaccinated worker, he must make the same decision for all other workers who have failed to vaccinate. Such conditions mean that we cannot speak of allowing discrimination in the context of the new regulation. It should be remembered, however, that when there is a suspicion of unlawful activity of the employer, the employee has the right to appeal to the labor court in order to decide by the court whether the employer's act was lawful.

February 2022

The employer's obligation to counteract the bad atmosphere at work

The Supreme Court in its judgment of November 7, 2018 (II PK 210/17, OSNP 2019/9/106) raised the subject of a bad atmosphere at work. In the opinion of the court, when the employer notices that the atmosphere at work and emotions of some employees may violate the dignity of other employees and create an atmosphere of intimidation, hostility, humiliation, humiliation or offending their dignity, it is obliged to counteract the behavior that may have the nature of the discrimination.

January 2022

Confirmation of infringement of personal rights as a basis for termination of the employment contract through the fault of the employer?

The District Court in Lublin upheld the thesis of the District Court in Biała Podlaska and pointed out that violation of personal rights may constitute grounds for termination of the employment contract due to the fault of the employer. In its ruling, the District Court indicated that the deliberate violation by the superior of the employee's dignity and other personal rights, even if it does not constitute mobbing, may constitute a justified reason for termination of the employment contract due to the fault of the employer. In turn, the District Court in Lublin, in the legal justification, indicated that the infringement of personal rights through improper actions by the employer, due to the relationship of the provisions of Art. 11¹ of the Labor Code and art. 23 and 24 § 1 of the Civil Code entitles the employee to terminate the employment contract without notice. Quoting "Pursuant to the first provision, the employer is obliged to respect the dignity and other personal rights of the employee. Therefore, it is his obligation towards the employee, the violation of which may result in the termination of the employment contract pursuant to Art. 55 § 1 (1) of the Labor Code. The condition for the application of this provision is that the employer has committed a serious breach of basic obligations towards the employee. Further responding to the allegation of violation of Art. 55 § 1 (1) of the Labor Code it can only be cited that the statement of a threat of infringement of the employee's personal rights may be classified as a serious breach and justifies the submission of a statement on termination of the contract. " [Judgment of the District Court in Lublin of November 25, 2021, VIII Pa 110/21, LEX no. 3274539.]

December 2021

Exceptions to Discrimination

As you know, the Labor Code introduces a prohibition of discrimination. In the past, he distinguished between unequal treatment and discrimination, which was its qualified form. The general prohibition of discrimination results from Art. 113 of the Code. It was changed in 2019 - since then, any manifestation of unequal treatment at work has been discriminatory. Further on in the Code (Article 183a) we find the requirement of equal treatment of employees, which correlates with the principle of non-discrimination. Both of these provisions also contain an open catalog of grounds for which discrimination is prohibited.

Not every departure from equal treatment of workers will constitute discrimination. Article 183b of the Labor Code, and more precisely its second, third and fourth paragraphs, introduce a catalog of circumstances that do not constitute a breach of equal treatment. These are:

failure to hire an employee for one or more reasons specified in art. 183a § 1, if the type of work or the conditions of its performance make the cause or reasons mentioned in this provision a real and decisive professional requirement for an employee - an example of such a situation may be the refusal to employ a 90-year-old woman with chronic obstructive pulmonary disease in a coal mine;
termination of the terms and conditions of employment for an employee in the scope of working time, if this is justified by reasons not related to employees without referring to another reason or other reasons listed in art. 183a § 1 - this applies to situations where, due to the employer's situation, it is necessary to extend or shorten the working time by termination of the terms of employment - so such a situation in the absence of this provision would constitute discrimination on the basis of working time
applying measures that differentiate the legal situation of an employee due to the protection of parentage or disability - this allows one employee to be privileged over others due to the fact that, for example, it takes care of a child and privileges disabled employees;
applying the seniority criterion when determining the terms of employment and dismissal of employees, the principles of remuneration and promotion, and access to training in order to improve professional qualifications, which justifies different treatment of employees due to their age - this allows for offering higher pay to employees with longer work experience or first dismissal of employees with the shortest seniority;
applying actions aimed at equalizing the opportunities of all or a significant number of employees distinguished for one or more reasons specified in art. 183a § 1, by reducing the actual inequalities for the benefit of such employees - for example, it may be the application of gender parities;
restricting access to employment by churches and other religious associations, as well as organizations whose ethics is based on religion, belief or worldview, due to religion, denomination or belief, if the type or nature of activities performed by churches and other religious associations, and organizations make religion, belief or belief a real and decisive professional requirement for an employee, proportionate to the achievement of the lawful goal of diversifying the person's situation - for example, the refusal to hire a Satanist in a Catholic seminary.

November 2021

Violation of personal rights instead of mobbing

The Supreme Court stated that when "the results of the evidence proceedings do not entitle the court to conclude that mobbing has taken place", the court, if it finds that there has been a violation of personal rights, may award the employee compensation. This concerns, in particular, cases of violation of the employee's dignity "and, as a consequence, violation by the employer of the basic obligation to respect the dignity and other personal rights of the employee under Art. 111 of the Labor Code " (decision of the Supreme Court of 27 April 2021, II PSK 46/2¹)

October 2021

What changes will take place in the labor law in 2022?

Directive (EU) 2019/1158 of the European Parliament and of the Council on work-life balance for parents and carers implies changes to the Polish legal system by the legislator.

One of the biggest changes will be the granting of an individual right to parental leave for fathers, up to four months. After the implementation of the changes as a result of the "work life balance" directive, the father will have an individual right to parental leave, regardless of whether the mother is entitled to it. Gentlemen who have had a child will only have two months of parental leave to use. If the man does not use them, they will be lost because, in accordance with the planned implementation of the regulations, they cannot be transferred to the mother.

September 2021

Employee discrimination based on gender and family status in the light of the Supreme Court judgment II PK 116/07

In the present case, the plaintiff accused her employer of discriminating against her, in which she paid her remuneration half the amount received by other employees and refused to participate in training attended by other employees. As the plaintiff's claims for compensation were not recognized by the courts of the first two instances, she lodged a cassation appeal with the Supreme Court. The Supreme Court decided that the complaint was justified, and the lower court misinterpreted the provisions of the Labor Code. According to the Supreme Court, it is irrelevant that the claimant was refused to participate in the training once, and not many times - this is still a form of discrimination, and the claimant's use of parental leave cannot be a reason for reducing her remuneration. This behavior was in breach of Art. 183b of the Labor Code, which indicates what actions of the employer violate equal treatment of employees.

August 2021

Employer interference with vaccination of employees against COVID-19

Currently, Polish law does not provide for any possibility for the employer to inquire into the issue of vaccination of employees against COVID-19. Vaccination as medical information is protected under the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / WE (hereinafter referred to as the GDPR). Art. 9 sec. 1 GDPR prohibits the processing of health data.

Of course, the employer may ask the employee to provide information about his vaccination, but the employee's response to such a request is the responsibility of the employee's good will and not a legal obligation. As the employee is not obliged to answer the employer's questions about vaccinations, refusal to do so may not have negative consequences for the employee.

July 2021

DEFINITION OF DISCRIMINATION

Pursuant to Art. 113 of the Labor Code, any discrimination in employment, direct or indirect, in particular due to sex, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, religion, sexual orientation, employment for a fixed or indefinite period , full-time or part-time employment - is unacceptable. On this basis, it is possible to define discrimination as unlawful deprivation or limitation of rights resulting from the employment relationship or unequal treatment of employees for the reasons listed in Art. 113 of the Code. Importantly, as indicated by the Supreme Court in the judgment of May 7, 2019 (file no. II PK 31/18), when discriminating against it, the "aspect of the fault, will or intentions of the employer" does not matter, which is "indifferent to the employer's liability. . Only the existing state of affairs is relevant, which is referred to as discrimination ". This means that an employer does not have to "want" to discriminate in order to be liable for discrimination - he will be liable whenever discrimination is proven.

One should also pay attention to the code-based distinction between direct and indirect discrimination, more broadly regulated in Art. 183a of the Code. Direct discrimination, pursuant to Art. 183a §3, there is a situation in which the employee was for one or more reasons specified in § 1 of the above-mentioned provision (it is an open catalog, which includes, among others, gender, age, disability, race, religion or nationality), is or could be treated in a comparable situation less favorably than other employees. Most often, therefore, it is about treating a specific person worse - Jan Nowak due to the fact that she moves on a ball, or Anna Kowalska due to her Greek Catholic religion.

On the other hand, we deal with indirect discrimination in the case of seemingly neutral employment conditions, the effect of which, however, is unfavorable disproportions or a particularly unfavorable situation of treating all or a significant number of employees, unless these conditions are objectively justified (cf. Article 183a § 4). Indirect discrimination, due to its "hidden" nature, cannot be based on discrimination against a named person, but on the whole group of people - e.g. women (indirect discrimination based on sex), Hungarians (indirect discrimination based on nationality) or 60-year-olds ( indirect discrimination based on age).

What other than discrimination is unequal treatment, because, as noted by the Court of Appeal in Łódź in its judgment of 28 August 2020, no.

reference number act III APa 7/20), "although these two principles are closely related to each other, they undoubtedly constitute separate principles, the violation of which by the employer has different consequences". This is a situation where two or more entities are treated differently. If the difference in treatment is objectively justified, it will be lawful. On the other hand, if there are no grounds for treating these two entities differently, i.e. if it is not objectively justified, we will be dealing with discrimination (cf. Art. 112). It follows that all discrimination is unequal treatment, and not all unequal treatment will be discrimination.

The difference between discrimination and unequal treatment is best illustrated by a specific example. For example, it may turn out that men and women will be treated differently in a specific case - but it will never be considered a justification for discrimination that is committed solely on the basis of sex. In its decision in case C-841/19 (JL v. Fondo de Garantía Salarial (Fogasa)), the Court of Justice of the EU ruled that the situation of people who work full-time and those who work part-time can be differentiated, to the detriment of the latter. This is possible even if it turns out that this less favorable treatment will primarily affect women. This is because the basis for the differentiation in this case is not the gender of employees, but the form of their employment. Compare, however, the judgment of the CJEU in case C-274/18 (Minoo Schuch-Ghannadan v Medizinische Universität Wien) adjudicating in a similar case, where the Court found that discrimination against persons employed full-time and part-time would be considered discrimination if it was established this rule adversely affects a significantly higher proportion of female workers than male workers, and if the said rule is not objectively justified by a legitimate aim or if the measures to achieve that aim are not appropriate and necessary.

June 2021

MOBBER'S CIVIL LIABILITY

Persons who have fallen victim to mobbing may bring the mobber to civil law liability. Pursuant to Art. 943 § 3 of the Labor Code: "An employee whose mobbing has caused a health disorder may claim an appropriate sum from the employer by way of pecuniary compensation for the harm suffered.

However, it should be remembered that it is the person bringing the action for redress that is obliged to prove both the fact of mobbing (unless this fact has been proved in other legally concluded court proceedings) and the legitimacy of the redress sought.

The jurisprudence shows that if the plaintiff insufficiently proves the link between mobbing and the deterioration of his health, the court may refuse to grant some of the plaintiff's claims. A similar situation may take place when the circumstances of the case indicate that the deterioration of health was caused by several factors at the same time, only one of which was mobbing. Then the court may award less compensation than that which the claimant requested. The District Court in Płock did so in its judgment of 24 January 2020, file number VI Pa 36/19. In this case, the plaintiff demanded from the employer, inter alia, payment of PLN 35,000 as compensation for the harm suffered in connection with the health disorder resulting from mobbing committed against her by the employer. However, the court awarded the plaintiff PLN 5,000 in this respect, which was motivated by the fact that the plaintiff's health impairment resulted primarily from her personality traits, difficult life situation, divorce, marriage with an alcoholic who showed aggression towards her, child's illness and conflict relations with parents.

The above judgment implies that the claimant, when determining the amount of compensation, should take into account all the circumstances affecting his health.

May 2021

The difference between discrimination in employment and breach of the principle of equal treatment of employees

The Labor Code provides for two principles regarding the prohibition of unequal and unfair treatment of employees.

One of them is the prohibition of discrimination in employment. This principle states that any discrimination in employment, direct or indirect, is inadmissible. In particular, this applies to discrimination based on sex, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, religion, sexual orientation, employment for a fixed or indefinite period, full-time or part-time employment . It is characteristic of discrimination to rely on any of the forbidden grounds.

Another principle resulting from the Labor Code is equal treatment of employees. This provision states that employees have equal rights to fulfill the same duties in the same way. This applies in particular to the equal treatment of men and women in employment.

These rules may seem similar and are closely related to each other, but they are separate rules, the violation of which by the employer has different consequences. In its judgment of 28 August 2020, III APa 7/20, the Court of Appeal in Łódź considered the differences between the two principles.

In the case at hand, the employee demanded that his salary be increased to the extent that other employees in the same position in the workplace received. This was argued by, among others approximation of working conditions, comparable professional qualifications and work requiring comparable responsibility and effort. However, the Court of Appeal in Łódź found that it does not constitute discrimination in employment under Art. 113 of the Labor Code, inequality not dictated by grounds deemed to be discriminatory, even if the employer may be attributed a breach of the principle of equal treatment of employees (Art. 112 of the Labor Code).

The categories of entities covered by the principle of equal treatment include employees characterized by a common feature that is relevant to the performance of the same duties. It is permissible to differentiate the rights of employees who perform different duties, or the same, but not the same. Moreover, the situation of the compared employees may be differentiated due to differences resulting from their personal predispositions.

On the other hand, discrimination is not all unequal treatment of a given person or group in comparison to others, but only such as a result of its difference from employees who are in the same factual or legal situation. The principle of non-discrimination therefore prohibits the worse treatment of certain persons for legally discriminatory grounds.

If the unequal treatment of employees is not dictated by prohibited criteria, only the principle of equal treatment of employees is violated, and not the prohibition of discrimination is breached.

This means that the provisions of the Labor Code relating to discrimination do not apply in the event of unequal treatment not caused by the cause recognized as the basis for discrimination. The judicature of the Supreme Court shows that discrimination is a qualified form of unequal treatment of employees and means inferior treatment of an employee unjustified by objective reasons due to being unrelated to the work performed, as well as personal and socially significant characteristics or properties.

On the other hand, inequality not dictated by grounds deemed to be discriminatory is not discrimination, even if the employer may be attributed a breach of the principle of equal treatment of employees. If an employee accuses the employer of violating the provisions on non-discrimination in employment, he should indicate the reason for the discrimination against him. In such disputes, the employee should present to the court the facts from which the presumption of discrimination (direct or indirect) can be derived, and then the burden of proof is transferred to the employer. From that moment on, it is the employer who has to prove that he was guided by objective reasons when differentiating the situation of employees.

Only the violation of the prohibition of discrimination gives rise to the employer's liability for damages under Art. 183 d of the Labor Code. Violation of the principle of equal treatment of employees who fulfill the same duties in the same way is also sanctioned, but on a different legal basis (Art. 471 of the Civil Code).

April 2021

Demonstration of unequal treatment in employment

The principle of non-discrimination in employment was introduced into the Polish legal system under European requirements by adding Art. 183a. This provision stipulates that employees should be treated equally as regards entering into and terminating employment, terms of employment, promotion and access to training to improve professional qualifications.

In particular, it is not allowed to differentiate the situation of employees according to their gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, religion, sexual orientation, employment for a specified or indefinite period, full or full employment. part-time work.

Under the concept of "the principle of equal treatment in employment" from Art. 183d of the KP, one should understand both discrimination on the basis of the forbidden differentiating criterion mentioned directly in the provision and other, apart from discrimination, cases of unequal treatment in employment. The above-mentioned criteria constitute only an example calculation, because due to the use of the phrase "in particular" by the legislator, protection against discrimination at work may be extended.

In the opinion of the Supreme Court, however, it will not be discrimination to adopt the differentiation criterion, which, although it differentiates the situation of entities belonging to the group distinguished for reasons considered as discriminatory to other employees, is objectively justified due to the lawful goal to be achieved, and the measures achieving this goal are appropriate and necessary (judgment of the Supreme Court of 28/02/2019, file no. I PK 50/18).

Reaching the retirement age cannot be considered a discriminatory criterion, as it is a socially justified criterion for the selection of employees for dismissal (the decision of the Supreme Court of 20 May 2020, ref. I PK 110/19).

In another ruling, the Supreme Court stated that the length of service criterion may be used in determining the terms of employment, the principles of remuneration and promotion, i.e. length of service is a criterion justifying different treatment of employees. The Supreme Court distinguishes between age and length of service, which should not be treated as equivalent (Supreme Court judgment of 5 February 2019, file no. III PK 12/18).

March 2021

Draft amendment to the definition of mobbing

On July 2, 2020, an MP's draft amendment to the Labor Code was submitted to the Sejm. The draft provides for recognizing the differentiation of the amount of remuneration according to the employee's sex as one of the manifestations of mobbing.

In the current legal state, mobbing means actions or behaviors concerning an employee or directed against an employee, consisting in persistent and long-term harassment or intimidation of an employee, causing him to underestimate his professional suitability, causing or aimed at humiliating or ridiculing the employee, isolating him or eliminating him from the team co-workers.

Draft initiators propose extending the definition of mobbing to take actions or behaviors concerning or directed against an employee, consisting in differentiating the amount of the employee's remuneration based on gender. In their opinion, actions should be taken to enforce the principle of equal remuneration of women and men for work of equal value.

The draft was approved, among others, by the Supreme Court, NSZZ Solidarność and the Chief Labor Inspector. The respondents noted that Art. 183d, which grants the person whose employer violated the principle of equal treatment in employment, the right to compensation. This provision shifts the burden of proof to the employer, relieving the employee from having to prove his discrimination.

The implementation of the proposed change could disrupt the current system of redress and could weaken the protection of workers from discrimination. The respondents noted that for claims under Art. 943, which speaks of mobbing, the burden of proof is on the employee. For this reason, proving that the differentiation in remuneration resulted in an underestimated assessment of professional suitability for him would be significantly difficult.

In July 2020, the project was submitted to the Special Committee.

February 2021

Judgment of the District Court for Warsaw Praga-Południe in Warsaw VI P 898/13

On December 17, 2019, the District Court for Warsaw Praga-Południe in Warsaw, 6th Labor and Social Insurance Division, heard a case for compensation and damages in connection with mobbing, ref. No. VI P 898/13.

In this case, the plaintiff was called by other employees due to the fact that, in their opinion, she came to work only to get pregnant and go on sick leave. Employees slandered the claimant in her absence, and her clothing was also commented on. In addition to slandering, the co-worker sent e-mails to the claimant without attachments, which made her work difficult, disconnected the business phone during the conversation conducted by the claimant, or sent the claimant's e-mails late. Moreover, the employer falsified the claimant's assessment as a civil service employee, which resulted in the non-renewal of her employment contract. The investigation team appointed to investigate the mobbing issue stated that the actions of the associates were aimed at eliminating the claimant from the team of employees.

In the justification of the lawsuit, the claimant stated that from the very beginning of her work she had been mobbed and harassed by her immediate supervisor and other employees. The mobbing used against her was supposed to lead to the plaintiff's mental health disorder and the need for treatment. The plaintiff was on sick leave due to her mental health, and as a result of negative actions directed against her by her associates, she suffered a health disorder for a period of 6 months. During this period, she underwent adaptive and anxiety-depressive disorders, which belong to the group of disorders that were a reaction to stress, and therefore had to take medications.

The court awarded the plaintiff the amount of PLN 23,497.98 as compensation for mobbing and PLN 8,240.00 as compensation for mobbing.

January 2021

Mediation in mobbing cases

A court ruling is not the only solution for resolving mobbing disputes between an employer and employee. The employer and the employee may strive for an amicable settlement of the dispute, inter alia, by participating in mediation.

Mediation is a voluntary method of amicable settlement of a dispute between the parties with the participation of an impartial and neutral mediator. Thanks to this, the parties to the conflict can come to an agreement and reach a settlement on their own. In practice, the advantages of this option are the possibility for the employer to pay compensation without a court order and the faster receipt of money by the employee.

Mediation may be conducted both before bringing the case to court and after initiating the proceedings pursuant to the court's decision to refer the case to mediation. According to Art. 1838 of the Code of Civil Procedure, the court may refer the parties to mediation at any stage of the proceedings. Both the employer and the employee can also file a request for mediation.

At the hearing, the courts should encourage the employer and employee to settle the dispute amicably. Then they refer them to a selected mediator or mediation center. In the event of disagreement with the mediator, he will be appointed by the court from the list kept by the district court. The judge may refer the employee and the employer to mediation in closed session, however, the consent of both parties to mediation is always required and each party may withdraw from it at any time.

It is worth adding that, apart from the mobbing proceedings, mediation in the field of labor law can also be used in matters relating to working conditions and pay, termination of employment contracts, obligations and rights of the employer and employee, or the prohibition of competition.

The mediator uses his powers to conduct mediation impartially and neutrally in relation to the parties, thanks to which the parties have a chance to maintain mutual relations also after its completion.

The arrangements made by both parties in the presence of the mediator are written down in the form of an agreement between the parties - a mediation settlement. It is then submitted to the court for approval.

Finally, it is worth pointing out that the costs of the mediation procedure are borne by the parties.

December 2020

Internal anti-mobbing procedures in large companies

Counteracting mobbing is defined in article 943 of the Labor Code as a duty of every employer. It should be noted that the employer is responsible for mobbing on the basis of risk and not fault. This means that in the event of a court dispute, he must show what actions he has taken to prevent abuse. In order to prevent mobbing in large companies, internal anti-mobbing procedures are established. Thanks to this, the employer has the opportunity to minimize the risk of such a situation occurring in his workplace and possibly prove that he has taken appropriate steps to prevent it.

The internal procedure for counteracting mobbing and other undesirable practices in the workplace may be defined in the form of regulations introduced in the form of an ordinance signed by a person highest in the management hierarchy in the workplace. Each employee should read this regulation and sign a declaration that he or she has read its content. The content and scope of such regulations should be adapted to the nature of a given workplace - i.e. its size, number of employees, organizational structure and the specificity of the industry.

The best form of combating mobbing is, of course, prophylaxis, but it is important to anticipate the course of action when a mobbing situation occurs. The most important part of such a procedure is determining the form of reporting unwanted practices and how to handle complaints. It is important for employees to be able to report mobbing behavior anonymously. Often, training and employee surveys are part of the anti-mobbing procedure in large companies.

Internal anti-mobbing procedures provide for the appointment of a team that will conduct explanatory proceedings in the event of a mobbing situation. It depends on the will of the employer whether it will be a standing or ad hoc committee, it is also possible to bring in external persons to strengthen its impartiality and professionalism. The complaining employee and the accused have the right to participate in the proceedings at every stage, they can participate in the testimony by witnesses, ask them questions and personally give evidence or explanations. On an equal footing, they can read and refer to all the evidence. The report on the investigation prepared by such a commission is the basis for the employer to draw consequences, e.g. disciplinary dismissal of the offender or implementation of corrective measures.

The anti-mobbing procedure should be transparent because it relates to the rights and obligations of all employees and its task is to create real protection for employees.

November 2020

What is the relationship between close relationships with superiors and mobbing?

The Supreme Court in the judgment of 23 January 2018 (reference number III PK 13/17) stated that the existence of close relations in the workplace between superiors and some employees negatively affects the objectivity of assessing the quality of work of individual employees by these superiors. Superiors who are privately in intimate relationships with employees are not able to efficiently manage the workplace because there is a conflict of interest. If any of the employees experiences mobbing, they are isolated from the employee team and cannot obtain support in the form of testimonies confirming their version of events among colleagues who are on the side of their superiors with whom they have personal relationships.

In a situation where it is difficult to obtain third party testimony, the court mainly relies on the opinions of expert psychologists and psychiatrists. A person who has fallen victim to mobbing may benefit from medical records that confirm the deterioration of their mental and / or physical health.

October 2020

Burden of proof in a case concerning violation of the principle of equal treatment by sexual harassment of an employee

In art. 18.3a § 6 of the Labor Code, the legislator included a legal definition of sexual harassment, which constitutes discrimination on the grounds of sex. According to this provision, sexual harassment is any unwanted conduct of a sexual nature or relating to the sex of an employee with the purpose or effect of violating his or her dignity, in particular creating an intimidating, hostile, degrading, humiliating or offensive environment for him. This behavior may consist of physical, verbal or non-verbal elements.

The basic regulation on the distribution of the burden of proof in cases involving claims arising from the violation of the prohibition of discrimination is contained in Art. 18.3b § 1 of the Labor Code. In the jurisprudence of the Supreme Court on the basis of the interpretation of this provision, it is assumed that in court cases for compensation for discrimination in employment, an employee should present to the court facts from which a presumption of direct or indirect discrimination can be derived.

This means that it is up to the employee to prove the occurrence of sexual behavior and to object to such behavior. In this case, objection may consist in, for example, avoiding contact with the perpetrator or not reciprocating the perpetrator's behavior.

Then, the burden of proof that the principle of equal treatment has not been breached, is transferred to the employer, with the exception of the possibility of justifying the sexual harassment on any objective grounds. The Supreme Court stated that Article 18.3b § 1 of the Labor Code, in the case of sexual harassment which, due to its obvious unlawfulness, cannot be justified by any objective reasons, must be supplemented by the regulation of Art. 14 sec. 3 of the Act of December 3, 2010 on the implementation of certain provisions of the European Union in the field of equal treatment, according to which, in the event of a violation of the principle of equal treatment, the entity accused of violating this principle is required to prove that it has not breached it .

September 2020

Disorder of health as a condition for a worker to claim compensation

According to Art. 943 § 3 of the Labor Code, an employee whose mobbing has caused a health disorder may claim an appropriate sum from the employer as compensation for the harm suffered. This provision creates a property mechanism for legal protection of the employee's health in the work environment, known under the Civil Code.

In its judgment of February 22, 2017 (file no. III APa 26/16), the Court of Appeal in Poznań considered what situations could not qualify as health disorders.

In the justification of the judgment, the court stressed that the compensation is due only for health impairment. He pointed out that not every mental health violation caused by mobbing can be classified as a health disorder. The court noted the existence of mental health violations, which, however, will not constitute a disorder of qualified health in medical terms.

The violations mentioned include: negative mental experiences, nuisance and unpleasantness felt by the injured person. In the opinion of the court, the violation of personal interests (as provided for in Article 448 of the Civil Code) is not enough in this case.

It must not be forgotten that the burden of proving health disorder rests on the claimant. This means that the employee will have to prove in court that he has a medical disorder.

An example illustrating the described principle may be the employee's situation in the case at hand. He was diagnosed with depression, but the court found that the disease was related to his general life situation and did not justify the award of compensation under Art. 943 § 3 of the Labor Code. Health disorders should be in a close causal relationship with mobbing, while other negative feelings and unpleasantness of the employee do not fall within the definition of health disorder.

August 2020

Criticism of an employee - is this already mobbing?

The 3rd Labor and Social Insurance Division of the Court of Appeal in Warsaw in its judgment of October 24, 2019 (reference number III APa 10/18) stated that even unfair but incidental criticism of an employee cannot be classified as mobbing. The very feeling of an employee that the actions and behavior taken towards him or her are mobbing is not a sufficient basis for stating that he actually occurs.

Pursuant to Art. 943 § 2 of the Labor Code, mobbing means actions or behaviors concerning an employee or directed against an employee, consisting in persistent and long-term harassment or intimidation of an employee, causing him to underestimate his professional suitability, causing or aimed at humiliating or ridiculing the employee, isolating or eliminating him from team of associates.

In this case, the court emphasized that the employee's opinions and feelings are his subjective opinion, and when assessing whether a given behavior meets the conditions for mobbing, an objective measure should be used, thus eliminating the cases of excessive sensitivity of the employee. By the way, the Court added that it is worth bearing in mind that, according to the views expressed in the jurisprudence, even unfair, but incidental, criticism of an employee cannot be classified as mobbing. The Court of Appeal in Katowice of February 8, 2018, in judgment ref. No. III APa 74/17.

It should be pointed out that the content of the testimonies of the witnesses interviewed in the present case did not in any way indicate that the employee was harassed, isolated, humiliated or intimidated. As part of the duties related to the managerial position, the supervisor talked with all employees about their work, expressing her opinion. According to the Court, such behavior of the superior was a normal practice, consistent with the interests of the employer, and did not raise any objections from other employees. Despite the fact that the employee was criticized by the supervisor, it was impossible to say that he was actually a victim of mobbing.

June 2020

Employer's liability for violation of the employee's personal rights

An employee who has a health disorder caused by working conditions has the right to financial compensation, regardless of whether the tort fulfills the conditions for mobbing, harassment or other violation of personal rights.

Based on the provision of art. 416 of the Civil Code, which is applied accordingly in employment relations, the employer shall be liable for violation of the employee's personal rights, even if the perpetrator of the violation was another employee, and persons authorized to represent the employer in employment relations tolerated this state of affairs. The employer is responsible for the behavior of all employees, so if he tolerates the mistreatment of some employees by others, he must take into account the award of damages by the court. This was stated by the Court of Appeal in Katowice in its judgment of 7 February 2019. (III APa 70/18).

The court pointed out that mobbing is a qualified labor law tort, so sanctions for its use are also labor law events. Labor courts adjudicate in this case primarily on the basis of art. 943 of the Labor Code.

However, it should be remembered that the courts are obliged to take into account not only labor law provisions, but also the acquis of civil law. This includes the scope of adjudication for compensation for harm suffered and compensation for damage caused by health disorder. Determinants of the amount of compensation due to an employee are, therefore, health disorders and harm resulting from the violation of personal rights. The basic premise determining the amount of compensation is the severity of the harm suffered, i.e. the type, nature, duration of suffering and negative psychological sensations, their intensity, irreversibility of negative health effects, and in this respect the degree and durability of the health disorder suffered and the loss of future prospects and the associated accompanying him a sense of helplessness and social inefficiency.

May 2020

Forcing to terminate the employment contract by agreement of the parties

Pursuant to the provisions of the Labor Code, the employment contract may be terminated by mutual agreement of the parties. This is associated with certain effects, including the case where the employer does not have to provide a justification for terminating the contract, nor is a written form required. The agreement of the parties is considered the easiest and safest way for the employer to terminate the employment relationship. It assumes the unanimous will of both parties as to the terms of termination of the contract.

An important consequence of such a solution is that such an agreement cannot be appealed to the Labor Court in the same way as for other modes of terminating an employment contract.

There is a widespread belief that signing the agreement can protect the employer against any claims by employees. In practice, therefore, there may be a situation in which the employer will persuade or even put pressure on the employee to terminate the employment contract by agreement.

However, this does not mean that the employee is unable to challenge the agreement. He has the right to do so, in particular when he thinks that he concluded it under the pressure or threat of the employer, or when the employer misled him by urging him to conclude an agreement.

In such a situation, it is possible to use the institution of evading the legal consequences of a declaration of will provided for in the Civil Code. It is believed that the agreement thus concluded was flawed. However, the employee will have to show that the agreement was affected by the defect at a later eventual trial.

The employee may claim that by signing the agreement he was unable to make an informed and free decision, acted under the influence of error, unlawful threat or deception.

The consequence of invoking these circumstances should be the invalidation of the agreement terminating the employment relationship, which then results in the continuation of the employment relationship.

April 2020

How can you prove in court that a mobbing situation really happened?

Harassment is hostile and unethical behavior that is targeted systematically by one or more people, mainly against one person. This person becomes helpless and defenseless, remaining in this position through continuous mobbing activities. The mobber's behavior must be reprehensible, without justification in moral norms or the principles of social coexistence. This is a pathological phenomenon that is repeated systematically and has been present in workplaces for many years.

How can you prove in court that a mobbing situation really happened? What evidence is needed?

The issue of evidence was raised by the Chamber of Labor, Social Security and Public Affairs of the Supreme Court in its judgment of January 23, 2018 (III PK 13/17).

In the aforementioned case, the plaintiff, affected by mobbing, was an employee of a slaughterhouse. The Regional Court stated that the plaintiff has not shown that she was persistently and for a long time subjected to the actions and behaviors of other people who were mobbing in her work environment. The evidence gathered in the case gives grounds only to describe the nature and place of work of the plaintiff - it was hard work due to the noise prevailing during its performance and the resulting need to address oneself with a shout, due to the inconvenience associated with carrying out activities on the tape production.

The Supreme Court did not accede to this assessment of the lower court - it concluded that despite the lack of evidence in the form of testimonials of colleagues, reliable evidence can be medical documentation.

Harassment and intimidation of an employee aimed at leading to an underestimated assessment of his professional suitability, humiliation, ridicule, isolation or elimination from a team of co-workers is a condition of calling a given situation mobbing. The assessment of whether this has happened must be based on objective criteria. The Supreme Court emphasizes that the assessment of the subjective feelings of a person who believes that their supervisor is abusing her cannot constitute the basis for determining responsibility for mobbing. Due to this, the testimonies of the victim alone are not sufficient evidence.

Of course, it is best if the victim has material evidence of mobbing, e.g. correspondence, recordings, etc. Often evidence may be the testimony of witnesses - colleagues who were present in a particular situation. Unfortunately, it may happen that employees do not want to testify and thereby expose themselves to the wrath of the employer - then the mobbed employee is isolated from the employee team and has limited evidence. The Supreme Court argues that in such a situation, medical documentation regarding the employee's psychiatric treatment may become objective evidence of mobbing. At the same time, the Supreme Court reserves the right to assess the causes and effects of the employee's superiors' activities described in the medical documentation by court experts. However, the court's verification of such findings, with a different conclusion derived from them, should be preceded by a new expert opinion. The court is obliged to determine whether medical records indicate accumulation of an employee or behavior directed against him, aimed at producing effects listed in the Labor Code as discriminatory.

March 2020

Amount of compensation for health disorder caused by mobbing

The Labor Code unequivocally states that an employee's health disorder caused by mobbing is the basis for claiming an appropriate amount from the employer as monetary compensation for the harm suffered. But how do you know how much this amount can be and what it depends on?

This problem was raised in the judgment of the Chamber of Labor, Social Security and Public Affairs (I PK 206/16) of the Supreme Court of 8 August 2017.

In the said case, the superior punished the employee severely for minor offenses at work - he moved him to a lower position. It is worth adding that other employees were not punished for the same offense at all. He also received reprimands for minor offenses, felt humiliated and mistreated at work. The employer did not respond to these situations, despite the fact that it is his statutory duty.

The plaintiff began using psychological counseling, which he reported because of difficulties in the workplace related to interpersonal relations with his supervisor (with behavioral disorders, in strong situational stress, with sleep and concentration disorders). The plaintiff was then found to have acute symptoms of situational stress, manifested in psychosomatic, depressive and sleep problems.

The claim of a mobbing victim for compensation is only updated if the injured person has proven the effect of mobbing in the form of a qualified health disorder in medical categories. The Supreme Court agreed that the amount of PLN 10,000 (representing three times the average salary in the country) is appropriate in this case. The experts assessed the damage to health at 8%. The plaintiff had been released from a psychiatrist for about two months. The court stated that in this situation the award of PLN 20,000 would not be justified because the plaintiff was able to work. The Supreme Court found that the financial compensation awarded to the plaintiff constitutes an economically perceptible value as corresponding to almost four times his previous monthly remuneration.

The Supreme Court emphasized that compensation should be a measurable economic compensation for the harm revealed in the form of psychological suffering suffered as a result of mobbing by the respondent employer. The justified, appropriate amount of due compensation depends not only on the size of the harm suffered, requiring an assessment of the degree of psychological or physical suffering caused, its intensity, duration or irreversibility of the consequences of the harm suffered, but also other circumstances accompanying the revealed harm, covered by the notion of so-called overall case.

The Supreme Court noted that the culpable failure to counteract mobbing by mobber superiors, which affects the disclosed health disorder caused by mobbing, should be assessed as an event that increases or enhances the sense of harm of an employee subjected to mobbing, which requires compensation by awarding one adequate financial compensation. The attitude of the defendant employer is not without significance for the amount of compensation that is to bring the injured to measurable satisfaction. As is clear from the facts of this case, the defendant on several occasions ignored the signals of incorrect behavior of the plaintiff's superior, bearing evident signs of mobbing, which was a serious violation of the employer's obligation to counteract mobbing.

The amount of compensation should not be affected by the employer's financial status.

February 2020

Employer's responsibility for mobbing at an integration trip

The provisions of the labor law clearly show that in certain cases the employer may be responsible for mobbing at the workplace, also in a situation where he did not directly participate in it. But what if such a situation occurred during an integration trip?

The Supreme Court in judgment II PK 341-15-1 replies that everything depends on the nature of the trip.

The quoted dispute concerned the alleged situation of employee sexual harassment that occurred during a business trip where alcohol was consumed. The woman fell asleep in the bed of a friend who had been sleeping next to her all night.

After this event, the woman got a long-term sick leave, she also benefited from mental health counseling due to severely disturbed psychosomatic and psychosocial functioning, with features of a maladaptive reaction that prevents her from performing basic social roles and diagnosing post-traumatic stress disorder.

Interestingly, the dispute concerned employees of the National Labor Inspectorate. A former employee demanded that the employer pay compensation for discrimination in employment and sexual harassment of 50,000. zlotys. Criminal proceedings were conducted regarding the behavior of employees, but they were discontinued. Civil Procedure number of violations of personal rights was dismissed. Eventually, the case went to the Supreme Court.

The Supreme Court dismissed the cassation complaint and stated that everything that took place on such a trip was "non-employee" and could not be subject to the Labor Code. As the Supreme Court emphasized: "an employer is not a guardian of his employees' morality outside of time and place of work, including during a private trip of employees on a foreign trip, therefore, due to the break of the time-local-causal relationship with employment, he is not responsible for the potential sexual harassment of a participant of such a trip by another participant in this private event. "

If we are dealing with a trip organized by employees of one workplace, but staying on vacation leave so that the employer is not a formal organizer of their departure, the case looks completely different than if it had been at the place and time of work. In this case, we are dealing with a private tour, in circumstances not related to employment relations. The Supreme Court also emphasized that the fact of alcohol consumption by tour members indicates that it cannot be qualified as a trip "during work", as this would involve serious disciplinary responsibility.

January 2020

Anti-bullying characteristics

As it results from the provisions of the Labor Code, it is the employer's duty to prevent mobbing. This does not mean that he is always responsible when mobbing in the workplace takes place (it is worth noting that this does not apply to the responsibility of the mobber himself). If the plant has properly organized and effective methods of responding to reported mobbing situations, the employer has nothing to fear. It is crucial, however, that he try to authentically and honestly investigate each reported violation of law, and if such a situation is found - draw real consequences for the perpetrators.

This is also important for employees who want to claim compensation as a victim of mobbing - if a person in this situation does not give the employer a chance to respond to the reported violations of law, he will be able to easily avoid liability.