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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.

KS


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 .

KS


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.

KS


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.

KS


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.

KS


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.