WARNING !!! automatic translation from Polish

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.