Labour law and HR New definition of mobbing - what should employers know?
Since 2020, VON ZANTHIER & DACHOWSKI Kancelaria Prawnicza sp. k. has been organising annual conferences on anti- mobbing and discrimination in the workplace. During these events, together with experts and practitioners, we discuss the latest trends, challenges and best practices in creating a safe and friendly working environment.
Therefore, we were delighted to hear about the work on the government's draft amendment to the provisions of the Polish Labour Code Act of 26 June 1974 (i.e. Journal of Laws of 2023, item 1465, as amended) (hereinafter: the ,,Labour Code’’), which involves changing the definition of mobbing. The Ministry of the Family, Labour and Social Policy has prepared a draft law that envisages simplifying and clarifying the definition of this phenomenon. The new provisions aim to better protect employees and facilitate the pursuit of their rights in court.
Key changes to the definition of mobbing
One of the most important changes is to recognise that the essential characteristic of mobbing is the persistent harassment of the employee. The new definition is to make the finding of mobbing independent of the intentionality of the perpetrator's action or the occurrence of a specific effect. Incidental and one-off behaviour will also be excluded, in order to focus on actual cases of long-term harassment.
In addition, the new provisions are expected to take into account the so-called ‘rational victim’ model, which will distinguish between actual cases of bullying and incidents perceived subjectively or inadequately. The lower thresholds for the amount of compensation for mobbing and the circumstances excluding the employer's liability will also be defined.
What does this mean for employers?
For employers, the new legislation will mean that they will have to adapt their internal anti-mobbing procedures. In particular, the bill provides for:
- An obligation to counteract mobbing: The introduction of rules to counteract the violation of an employee's dignity and other personal rights, as well as to counteract discrimination and mobbing in the work regulations (or a notice in the absence of regulations).
- Preventive and corrective action: Implement measures to detect mobbing, respond quickly to incidents of mobbing and support victims..
- Distribution of the burden of proof: Facilitating the procedure for employees to claim by adopting the principle that the employee has to substantiate the harassment, and the employer has to prove its absence.
- Minimum amount of compensation: Setting the lower threshold for compensation for mobbing at six months of the employee's salary.
The draft also provides for the exemption of the employer from civil liability in the event of effective implementation of procedures to prevent bullying, provided that the bullying did not originate from the employee's superior.
The draft amendments have already entered the consultation phase, and the social partners now have 21 days to submit their comments on the bill. Everything therefore promises that the changes will enter into force as early as the third quarter of 2025.
In the context of European Union law
The proposed amendments also respond to the need to implement the EU Council Directive 2004/113/EC of 13 December 2004 on equal treatment of men and women in the workplace. The aim is to harmonise the definitions of harassment and mobbing and to strengthen the compensatory and deterrent function of the legislation.
Our Plans for 2025
In view of the upcoming changes, we will devote a special panel discussion to the new legislation and its practical implications for employers at our annual conference in November 2025. A dedicated webinar is also planned, in case the legislation comes into force early. During these events, we will discuss in detail:
- best practices for implementing effective anti-mobbing policies.
- practical ways to adapt employers' internal regulations to the new legal requirements.
- new rules on the distribution of the burden of proof and their impact on litigation.
Summary
The changes to the definition of mobbing are a step towards better protection of employees and the creation of a healthier working environment. At the same time, the new legislation clearly defines employers' obligations, which will avoid unnecessary litigation and better protect the interests of both parties to the employment relationship. We encourage all employers to follow our news and participate in our events. Together we can effectively combat mobbing and discrimination in the workplace.
