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.
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