What responsibility does the employer have for mobbing?
The definition of mobbing is set out in Article 94 § 2 of the Labour Code. According to that provision, those are acts or conduct concerning the employee or directed against the employee, consisting in persistent and prolonged harassment or intimidation of the employee, causing him to underestimate his professional suitability, causing or aimed at humiliating or ridiculing the employee, isolating him or eliminating him from the team of co-workers. This means that in order to be able to say mobbing, the following conditions must be met jointly:
- there are actions and behaviours concerning or directed against the employee;
- these impacts consist of harassment and intimidation;
- they are systematic and long-lasting;
- the purpose of the impact is to humiliate or ridicule the employee, isolate him from co-workers or eliminate him from the team of co-workers;
- as a result, the employee has an underestimation of professional suitability, a sense of humiliation or ridicule, or has been isolated from co-workers or eliminated from the team of co-workers.
The employer not only cannot use mobbing, but must also ensure that this type of behavior does not occur between his employees. This follows directly from Article 94 § 1 of the Code of Civil Procedure. The Labour Code imposed on the shoulders of the employer the obligation to take all preventive actions aimed at counteracting and eliminating all manifestations of mobbing in the workplace. In its judgment of 21 April 2015 (file reference: II PK 149/14), the Supreme Court stated that „the obligation to counteract mobbing does not consist only in actions concerning cases of occurrence of this phenomenon, but also in preventive actions that should be real and effective. Regardless. who is the perpetrator of mobbing, the employer will be responsible for its occurrence in the workplace.”
The employer should first of all counteract mobbing, and only then fight it. To achieve this, he must train employees, inform about the danger and consequences of mobbing, as well as apply appropriate „educational” measures himself, so as to set an example to his subordinates. The work regulations or other publicly available company act should clearly define the competences of employees and their official subordination, methods of making decisions and resolving possible conflicts, as well as the rules for the flow of information. Employees must have a full picture of their rights and obligations so that they know when a supervisor is using them, exceeding their competence or engaging in unlawful practices. On the other hand, employees who commit harassment against their colleagues must be aware that their behavior is punishable by both criminal law and labor law.
In practice, the employer should take at least the following actions:
- provide each employee with written information about what mobbing is, what risks it carries and how they are punished;
- set specific hours during which each employee can personally present his case to the employer;
- oblige employees to report any observed cases that may indicate the occurrence of mobbing, while guaranteeing complete confidentiality.
Almost always, the legal consequences of mobbing taking place in the workplace are borne solely by the employer, both when he himself committed prohibited activities and when such actions were committed by his employee and he tolerated them. Due to the fact that mobbing means any actions or behaviors concerning an employee, only employees are protected. However, the employee’s place in the organizational hierarchy of the plant is not important here. At the same time, it should be emphasized that the entity assessing whether a given behavior should be treated as mobbing is never the employer. Such an assessment may be made only by the labour court on the basis of all the facts of the case, including the hearing of the harassed employee, the employee using mobbing and the employer.
Pursuant to Article 94 of the Labour Code, an employee whose mobbing has caused a health disorder has the right to claim from the employer in court an appropriate amount of monetary compensation for the harm suffered. An outgoing employee with such a claim must prove that:
- has been subjected to mobbing;
- the employer did not counteract this phenomenon;
- has suffered a health disorder as a result of the behaviour of another employee (or employer), which should be supported by appropriate medical records;
- there is a cause-and-effect relationship between mobbing in the workplace and the employee’s health disorder.
Compensation will be due to the employee provided that he experiences a disorder of health qualified in medical terms. Therefore, it is not enough to demonstrate the consequences in the psychological sphere, such as feelings of sadness, depression, regret or irritability. There must be a health disorder, which is a disease entity (physical or mental, e.g. ulcers, upset stomach, anxiety, depression, etc.).
In addition to the right to compensation, the injured employee is also entitled to compensation if, as a result of mobbing, he terminated the employment contract. This compensation is due for the fact that the employee is deprived of the notice period, despite the fact that he himself terminated the contract. It should be emphasized that the employee will acquire the right to compensation only if the employer has actually committed mobbing against him or failure to counteract this phenomenon. Labour courts require that in this case there is a prerequisite for fault on the part of the employer – intentional fault or gross negligence.
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