The parliament is finalizing work on amending the Labour Code and the Code of Civil Procedure, known as the Anti-Mobbing Act. The act changes the definition of mobbing, increases the amount of benefits and specifies the employer’s obligations. Below are the most important changes.
Definition of mobbing
On the basis of the applicable Article 94(3) § 2 of the Labour Code, mobbing means actions or behaviours consisting in persistent and long-term harassment or intimidation of an employee, causing him or her to underestimate his or her professional suitability, humiliation, ridicule, isolation or elimination from the team. All these prerequisites must occur together, which in practice makes pursuing claims extremely difficult.
The proposed Article 94(3) § 2 of the Labour Code states that mobbing means behaviour consisting in persistent harassment of an employee. The persistence of bullying is that it is repetitive, recurrent or constant. Incidental behaviour is not mobbing, even if it constitutes a violation of the employee’s personal rights.
The new definition significantly expands the scope of employer’s liability. The requirement of longevity and the need to demonstrate the effect disappear from the provision. In addition, the proposed Article 94(3) § 7 of the Labour Code stipulates that certain behaviours are considered mobbing even if their aim was not persistent harassment. Thus, the perpetrator’s intention ceases to be a prerequisite.
The proposed Article 94(3) § 4 of the Labour Code introduces an open catalogue of manifestations of mobbing, occurring alone or jointly, including, m.in, humiliation or insultation, intimidation, underestimation of professional suitability, unjustified criticism, obstruction of functioning in the work environment, and isolating an employee or eliminating him from the team. According to the draft Article 94(3) § 5 of the Labour Code, these behaviours may consist of physical, verbal or non-verbal elements.
The circle of perpetrators has also been significantly expanded. In accordance with the proposed Article 94(3) § 8 of the Labour Code, mobbing is considered to be behaviour emanating, in particular, from an employer, a supervisor, a person holding an equivalent position, a subordinate, another employee and a person performing work on a basis other than an employment relationship – either from an individual or a group. The employer’s obligation to respond is therefore not limited to supervising managerial staff.
The legislator has recognized the risk of abuse associated with such a broad definition. In accordance with the draft Article 94(3) § 9 of the Labour Code, behaviour justified and expressed in an appropriate form towards an employee, in particular settling accounts for entrusted work or criticism thereof, cannot be considered mobbing. This provision shifts the practical burden to the ability to demonstrate that management activities were substantive and appropriate, which increases the importance of documenting communication within the company.
Employer’s obligations
The current Article 94(3) § 1 of the Labour Code is limited to a general order to counteract mobbing, without indicating what the counteraction is to consist of. The proposed Article 94 (3) § 1 of the Labour Code requires the employer to counteract mobbing in an active and permanent manner, in particular by applying preventive measures, detecting mobbing and responding appropriately to mobbing, as well as by taking corrective actions and supporting persons affected by mobbing.
This obligation is associated with a new obligation of an organizational nature. In accordance with the draft Article 94(3a) § 1 of the Labour Code, an employer employing at least 9 employees sets the rules – after the amendments of the committee, it is to be at least 10 employees – the procedures and frequency of actions in the areas of counteracting the violation of the employee’s dignity and other personal rights, counteracting the violation of the principle of equal treatment in employment, counteracting discrimination and counteracting mobbing in the regulations, if they are not specified in the agreement collective labour or in the work regulations.
The Act also indicates that employers will be obliged to adapt the work regulations to the requirements set out in this Act or to issue regulations referred to in Article 94(3a) § 1.
The content of such regulations is agreed by the employer with the company’s trade union organisation, and in the absence of such regulations – with employee representatives selected in accordance with the procedure adopted by the employer. This provision shows that the anti-mobbing policy ceases to be a declarative document, its application should be demonstrable in the event of a dispute.
Claims and burden of proof
The proposed Article 94(3) § 11 of the Labour Code provides that an employee who has suffered mobbing has the right to seek compensation from the employer in the amount of not less than six times the minimum wage for work or to claim compensation. The current threshold has been criticized for years as inadequate to the extent of the harm.
The solution contained in the proposed Article 94(3) § 12 of the Labour Code, according to which an employer who has paid compensation or compensation to an employee for mobbing is entitled to seek compensation for the damage suffered from the person from whom the behaviour constituting mobbing originated.
Discrimination
The act also expands the concept of discrimination. Article 18(3a) § 4(1) of the Labour Code, which is added, introduces discrimination by assumption and discrimination by association. The first is that an employee is treated unequally because of a characteristic that is mistakenly attributed to him; the second – on unequal treatment due to the relationship with the person to whom the characteristic relates, for example, due to raising a child with a disability.
Protection against retaliation has also been strengthened. According to the draft Article 18(3e) of the Labour Code, the employee is entitled to protection regardless of whether the violation of his rights actually occurred, as long as he acted in good faith, and also covers the employee who provided support to a person exercising his rights.
The new Article 18(3f) introduces into the Labour Code the rule of distribution of the burden of proof in cases of violation of the principle of equal treatment, modelled on the solution previously in place in the Anti-Discrimination Act. The employee is obliged to prove that the violation has occurred, and if he meets this obligation, the burden is transferred to the employer, who must prove that he has not violated the principle of equal treatment.
Until now, due to the literal wording of the provisions of the Labour Code, such a rule of evidence covered only forms of discrimination resulting from Article 18 (3b) in conjunction with Article 18 (3a) § 1 of the Labour Code. In the case of harassment and sexual harassment, on the other hand, the distribution of the burden of proof provided for in the Anti-Discrimination Act was applied. The new provision regulates this state of affairs by including the rules of evidence in all discriminatory cases in their entirety in the Labour Code, without the need to resort to other legal acts in relation to some forms of discrimination.
Amendments to the Code of Civil Procedure
The Act also amends the Code of Civil Procedure. Article 461 § 11 of the Code of Civil Procedure, as amended, stipulates that cases concerning the protection of personal rights, mobbing and violation of the principle of equal treatment in employment fall within the jurisdiction of district courts as labour courts, regardless of the value of the subject matter of the dispute. The territorial jurisdiction for cases of infringement of personal rights has also been extended.
