The provisions concerning workplace harassment (mobbing) in their current form were introduced into the Polish Labor Code in 2004 and have been in force for over 20 years. After two decades of their application, the legislator has decided to revise the existing regulations.
The draft amendment, which has already been approved by the Council of Ministers and is currently at the parliamentary stage, provides for significant changes, including the introduction of a new definition of workplace harassment, as well as the clarification and expansion of employers’ obligations with regard to preventing labor law torts.
New Definition of Workplace Harassment – Key Changes and Legal Challenges
The amendment focuses primarily on modifying the definition of workplace harassment, while at the same time aiming to enhance the level of protection granted to employees. Under the currently binding definition set out in Article 94³ paragraph 2 of the Labor Code, workplace harassment is understood as any act or behavior relating to an employee or targeted against an employee that involves persistent and long-term bullying or intimidation, resulting in lower self-evaluation by the employee of his professional abilities, with the purpose or effect of humiliating or ridiculing, isolating or eliminating that employee from the team. As indicated by the Supreme Court in its judgment of February 11th, 2014, case file number I PK 165/13 (LEX no. 1444594), classification of certain conduct as workplace harassment requires the cumulative fulfilment of all statutory characteristics. This solution has made it difficult to pursue claims by individuals affected. The necessity to demonstrate the simultaneous fulfilment of all statutory requirements makes proceedings in such cases particularly challenging from an evidentiary perspective, which often leads to discouragement among victims of workplace harassment from asserting their rights before courts. Statistical data cited in the justification to the draft amendment concerning workplace harassment cases heard by courts of first instance confirm the above. It follows that in 2022, 725 cases were pending, of which 238 were concluded, with only 18 being upheld in whole or in part.
Simplification of the Definition and New Legislative Approach
The proposed changes depart from the existing, extensive definitional structure of workplace harassment in favor of simplification, indicating persistent bullying of an employee as its core element, understood as behavior that is not incidental but repeated, recurring or continuous. At the same time, it has been emphasized that conduct constituting workplace harassment may consist of physical, verbal and non‑verbal elements. The draft Act also provides for the introduction of a number of regulations specifying its remaining features, both in positive and negative terms. For example, justified actions undertaken towards an employee in an appropriate form will not be considered workplace harassment, in particular those related to holding the employee accountable for the performance of entrusted duties or formulating constructive criticism of their work. The adoption of such a solution aims to limit potential abuses, while simultaneously ensuring protection for managerial and executive staff in the enforcement of employee duties.
Catalogue of Behaviors and Perpetrators – Expanded Scope
Additionally, it has been clarified that the classification of certain conduct as workplace harassment shall remain independent of the perpetrator’s intent or the occurrence of a specific effect. The amendment also provides for the introduction of an open catalogue of conduct deemed manifestations of workplace harassment. This catalogue includes in particular humiliating or degrading an employee, violating their dignity, intimidation, undermining their professional suitability, unjustified criticism and ridicule. At the same time, the regulation defines the group of entities that may be considered perpetrators, indicating that these include not only superiors, but also persons holding equivalent positions, subordinates, other employees, as well as individuals performing work on a basis other than an employment relationship. The catalogue of potential perpetrators is open‑ended and covers actions undertaken both by individual persons and by groups of entities.
Minimum Compensation for Workplace Harassment – New Thresholds
Importantly, the proposed regulations provide for the determination of a minimum threshold for compensation for pain and suffering claimed by an employee in connection with experiencing workplace harassment, set at no less than six times the minimum wage for work, determined under separate regulations. In justifying the establishment of this minimum threshold, the legislator argues that harassment of a persistent nature is particularly destructive to those affected and therefore the amount of compensation should genuinely fulfil both compensatory and deterrent functions.
Changes in Discrimination Law – New Definitions and EU Alignment
It is also worth noting that the draft amendment covers not only issues related to workplace harassment but also provides for changes concerning another labor law tort, namely discrimination. In particular, the proposed provisions assume a change in the definition of “direct discrimination”, as its current wording also encompasses hypothetical situations. The currently binding Article 18³a paragraph 3 of the Labor Code provides that direct discrimination exists in situations where an employee, for one or more of the reasons specified in Article 18³a paragraph 1, was, is or could be treated less favorably than other employees in a comparable situation. Consequently, this provision allows discrimination to be found even in the absence of an actual negative differentiation in the employee’s situation. Under the new definition, “direct discrimination” will exist where an employee, for one or more of the reasons specified in the preceding provisions, is treated less favorably in a comparable situation than another employee is, was or would be treated. This change aims to harmonize Polish law with EU law, in particular with the definition of “direct discrimination” set out in Article 2.1 letter a) of Directive 2006/54/EC of July 5th, 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
Discrimination by Association and Assumption – New Legal Concepts
The draft also introduces new definitions of so‑called discrimination by association and discrimination by assumption. Discrimination by association refers to situations where less favorable treatment of an employee is a consequence of the characteristic of a person with whom the employee is in a particular relationship, for example a family member. This may concern, by way of example, unequal treatment of a person due to the fact that they provide care for a child with a disability. Discrimination by assumption, on the other hand, occurs when an employee experiences unfavorable treatment based on a characteristic that is erroneously attributed to them. This may manifest itself, for example, in the creation of a hostile atmosphere towards persons who are assumed to have a certain sexual orientation or political identification.
Damages vs. Compensation – New Structure of Employee Claims
The regulation further provides for the distinction between claims available to an employee in the event of a breach of the principle of equal treatment, namely damages and compensation for pain and suffering. Under the current legal framework, in the event of such a breach, the employee is entitled to a single benefit referred to as “damages”, which covers not only pecuniary loss but also (or exclusively) harm to the employee’s non‑material interests. This construction is inconsistent with the statutory concept of “damages”, understood as liability for pecuniary damage, encompassing losses suffered by the injured party as well as profits which it could have obtained, if no damage were inflicted (Article 361 of the Civil Code). Furthermore, similarly to workplace harassment, a minimum threshold for compensation for pain and suffering has been established and it differentiates depending on the nature of the breach of the principle of equal treatment. In the case of an incidental breach, the employee shall be entitled to compensation in an amount not lower than the minimum wage for work, determined under separate regulations. In the case of repeated breaches, the employee shall be able to claim compensation in an amount not lower than three times the minimum wage, also determined under separate regulations. Finally, it should be noted that the proposed provisions do not modify the rules governing the burden of proof in cases concerning breaches of the principle of equal treatment in employment, but rather organize them by comprehensive regulation of this matter in the Labor Code. The employee remains obliged only to substantiate that such a breach has occurred, whereas the employer bears the burden of proving that the alleged breach did not take place.
New Employer Obligations – Prevention and Internal Policies
As indicated at the outset, the proposed regulations clarify and expand the scope of employers’ obligations, introducing in particular the requirement to prevent all forms of unequal treatment, discrimination and workplace harassment in the work environment. These provisions impose on employers an obligation to actively and continuously counteract against workplace harassment, including by undertaking preventive measures, detecting instances of such behaviors, responding appropriately to such events, implementing corrective actions and ensuring support for persons affected by bullying. In order to fulfil these requirements, employers shall be obliged to establish rules, procedures and the frequency of actions in the area of preventing various forms of violence in the workplace. These regulations should take the form of internal policies, unless they are included in a collective labor agreement or work regulations. This obligation shall apply exclusively to employers employing at least nine employees and which will have six months to adapt work regulations or introduce anti‑mobbing policies. This six‑month period is calculated from the date of entry into force of the draft Act.
Rationale for the Changes and Implementation Readiness
In justifying the scope of the proposed changes, the legislator indicates that they are the result of transferring into the Labor Code the achievements of the case law of common courts and the Supreme Court, within which the previously very generally formulated definition of workplace harassment was clarified and expanded. The current wording of the provisions leads to social misunderstanding, frequent abuse of the concept and insufficient awareness of its characteristics on the part of employers, due to which preventive actions at workplace level too often prove ineffective.
Given the scope and significance of the planned changes, it is advisable to begin preparation for their implementation well in advance. Early adjustment of internal regulations will allow not only compliance with new statutory obligations, but also efficient and organizationally safe implementation of the required solutions. Should you have any questions or require support in developing or updating internal regulations, we encourage you to contact our law firm.