Currently, the Polish parliament is busy with legislative work on the government’s draft bill to update regulations on the principle of equal treatment in employment and on counteracting behaviour similar to mobbing. The draft regulations are heralded as pursuing a new regulatory philosophy, one whose trait is veering from legal formalism towards effective protections. The proposed solutions are worth a closer look even at this stage, as once adopted, they will require employers to revise internal regulations.
The definition of mobbing now in force is over two-decade old. Commonly considered too restrictive, it calls for a number of prerequisites to be satisfied.
The draft bill proposes simplifying and broadening the legal-code meaning of mobbing, which is intended to stand for persistent harassment of an employee, thus actions that are recurring, repeating or constant. The legal classification is supposed to be independent of the culprit’s intentions, nor will proving a specific result, e.g. health issues, be necessary anymore. The draft also introduces a sample catalogue of mobbing indications, including such conduct as: humiliating or insulting, intimidation, lowering the employee’s work assessment, levelling ungrounded, trenchant criticism, demeaning or mocking, impeding workplace functioning in terms of reaching work goals, completing work tasks, leveraging one’s skill set, communicating with co-workers or having access to necessary information, as well as isolating the employee or removing them from a team. Notably, ordering such behaviour or goading it on is going to fall under mobbing too. The regulations are explicit in saying that well-grounded and appropriately expressed behaviour, especially when it comes to the evaluation or criticism of work done, cannot be regarded as mobbing.
If mobbing is determined to be the case, the employee will be able to demand recompense from the employer to the tune of no less than six times the amount of minimum wage or lodge a claim for damages. Concurrently, the draft provides for the employer having the option of a recourse action against the culprit if the recompense or damages are awarded. New regulations thus offer protection mechanisms for both the wronged employee and the affected employer.
The draft also introduces two new definitions of discrimination, heretofore unknown to the Polish labour law: discrimination by assumption and discrimination by association. The first consists of prejudiced treatment of an employee due to erroneously ascribing a particular trait, the basis of unequal treatment, to them. An example might be bias against someone who is only thought to have a specific political persuasion, ethnic background or sexual orientation. Meanwhile, discrimination by association would be prejudiced treatment caused by a trait of another person, one who the wronged employee is associated with.
A person suffering from a breach of the non-discrimination principle is going to be given the right to seek redress, financially no lower than the minimum wage amount but also to claim for damages. Should the principle of equal treatment be broken repeatedly, it will be up to the court to gauge the wrong inflicted and order recompense no lower than three times the minimum wage.
Any employer with nine staff or more will be obliged to deploy new procedures to counter mobbing, violations of the principle of equal treatment and discrimination alike. Lack of appropriate internal regulation will in itself constitute a breach.
The amendments for regulations on mobbing, the equal-treatment principle and non-discrimination are a considerable step towards increasing the actual, not just declarative, staff protection. With a simplified definition, departure from excess formalism and establishing more precise employer duties, they indicate an attempt to adapt the law to the problems genuinely existing in work environments. New regulations can initially contribute to a rise in the number of court cases but should eventually impact the management standards across organisations tangibly and for the better.
Dariusz Zimnicki, Partner at ZL LEGAL Legal Advisors, contributed to this review.
