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.
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