The current definition of mobbing contained in Article 94 (3) § 2 of the Labour Code requires a simplification and at the same time a specific indication of what the phenomenon of mobbing is. The definition proposed by MrPips primarily includes a core feature of mobbing, which is persistent harassment of an employee. An additional new definition is to include 3 forms of mobbing: physical, verbal and non-verbal.
The amendments in question concern protection against discrimination in the workplace, which at the same time allows for the correct implementation of Council Directive 2004/113/EC of 13 December 2004, thus adapting Polish law to the requirements of the European Union.
What is mobbing?
To answer the question “what is mobbing?” First of all, it is worth explaining what mobbing is is not. It should not be equated with work discipline, constructive feedback on poorly performed tasks, or conflict at work. In the professional environment, we can encounter various behaviors that raise ethical doubts, but not all of them meet the criteria for the definition of mobbing.
H. Leymann, a Swedish researcher on this phenomenon, identified 45 types of behavior that are part of mobbing. These include, but are not limited to: written and verbal threats, incessant criticism, isolation of the victim, ignoring her, jokes about private life, as well as baseless questioning of the decisions she makes.
Key to diagnosing a situation as mobbing are three elements: time, power disparity and the health status of the victim.
Time:
- Durability: actions must last a minimum of half a year.
- Repeatability: behaviors occur at least twice a week.
Force Disproportion:
- There is a clear imbalance between the parties, for example due to the position of the mobber in the organizational hierarchy.
State of health:
- Mobbing causes negative health effects in the victim, both mental and physical.
Recognizing mobbing requires a thorough analysis of these criteria, since not every difficult work experience can qualify as mobbing. The phenomenon is also largely subject to subjective assessment, which depends on the personality characteristics or sensitivity of the employee.
A new definition
The work on changing the definition started by MRPips responds to the current needs of the working environment, but is also a continuation of actions already taken in other European countries and managed by the European Union.
At European level, several measures have been taken to respond to situations of mobbing, such as Directive 89/391 placed greater responsibility on employers for health and safety in “all aspects related to work” and the European Parliament adopted a resolution (Resolution A5-0283/2001) in which it called on EU Member States to review and supplement their legal systems with measures on mobbing sexual harassment and harassment and to achieve harmonization of the definition of “mobbing”.
A new definition of mobbing will be based on three previously distinguished forms of mobbing: physical, verbal, non-verbal as well as exclusion from the definition of behaviors that can be classified as once/incidental. We can also expect that a bill to redefine mobbing will refine the notion of “persistence” of harassment. The ministry also wants to take into account the case law of the Supreme Court, which states that mobbing can function regardless of the intentionality of the perpetrator's action or the occurrence of a specific result. Even if the actions were unintentional or “only” aggravated by the occurrence of a given effect, and did not lead to it - they can still be considered mobbing. According to the case law of the labor courts, model of rational sacrifice, that is, one that is based on criteria that allow an objective assessment of the situation in which the reported behaviors qualify as mobbing. The introduction of the rational victim model can help strike a balance between protecting the rights of workers and avoiding abuse by hypersensitive people, which will be relevant for judicial jurisprudence.
In addition, the new definition of mobbing will introduce:
- Introduction of the obligation to include the principles of anti-mobbing and discrimination in the employment regulations.
- Impose on the employer the need to implement three key anti-mobbing measures: prevention, detection and response to cases of mobbing, as well as providing support to those affected.
- Exemption of the employer from civil liability in a situation where the mobbing did not come from the supervisor and the preventive measures implemented proved to be effective; in this case, the direct perpetrator of the mobbing is responsible.
- Establishment of the minimum amount of compensation for mobbing at the level of six times the monthly salary of the employee (currently a lump sum of the minimum wage applies
Currently, the draft amendment to the Labour Code is at the stage of public consultation, which has been going on since December 2024, the planned date of adoption of the draft by the Council of Ministers is the third quarter of 2025. This is a key step in the legislative process, which aims to refine the draft based on the opinions expressed by various social groups and institutions.
summary
The new definition of mobbing, which is being worked on by the Ministry of Family, Labor and Social Policy, aims to simplify the current regulations and adapt them to the contemporary challenges of the work environment. The introduction of specific forms of mobbing and the obligation to combat this phenomenon in the labour regulations is an important step towards better protection of workers and harmonization of the rules with EU requirements.
Sources
- https://www.linkedin.com/pulse/nowe-regulacje-dotycz%C4%85ce-mobbingu-ministerstwo-mtnnf/?trackingId=V6J5LoeEXQTF2FS4IDs%2BNg%3D%3D
- https://www.gov.pl/web/premier/projekty-ustawy-o-zmianie-ustawy--kodeks-pracy
- https://sip.lex.pl/akty-prawne/dzu-dziennik-ustaw/kodeks-pracy-16789274/art-94-3
- https://www.eurofound.europa.eu/en/european-industrial-relations-dictionary/mobbing
- https://www.eurofound.europa.eu/en/european-industrial-relations-dictionary/mobbing
- https://www.eurofound.europa.eu/pl/surveys/european-working-conditions-surveys/europejskie-badanie-warunkow-pracy-2024-r
