More and more important topic in organizations is taking action on the prevention of discrimination and mobbing. The topics of mobbing, discrimination and whistleblowers were discussed during a webinar that we had the pleasure to host on November 25, 2021. However, it is worth reiterating the importance of effectively implementing appropriate procedures and raising awareness, both among decision-makers and other employees in this area. This may contribute to reducing undesirable situations in the company.
What is mobbing?
In order to effectively manage and prevent difficult situations in an organization, it is important to start by defining what mobbing and discrimination are.
According to the definition of the Labour Code, mobbing means “(…) actions or behaviour concerning an employee or directed against an employee, consisting of persistent and long-term harassment or intimidation of an employee, resulting in lowering the evaluation of the employee’s professional suitability, causing or intended to cause humiliation or ridicule of an employee, isolating the employee or eliminating the employee from the team of co-workers.”
The legislator has linked the concept of mobbing with the harassment of an individual in the workplace. In this sense, the term has also come into use in common language. This definition, however, does not indicate a catalog of behaviors, or at least guidelines, that would allow for unambiguous classification of a given behavior as mobbing or discrimination.
The guidelines developed by the doctrine, jurisprudence and literature are helpful in qualifying this type of behavior. To a greater or lesser extent, they are helpful in assessing the behavior of the mobber or mobbed person. However, it must be remembered that the fulfilment of the statutory conditions for mobbing or discrimination (and consequently the establishment that pathological phenomena have occurred in an organisation) must always be considered individually. It is necessary to take into account the circumstances of the specific case.
In the current state of the law there are no provisions that explicitly recognize certain behavior as prohibited. One of the most important indicators of mobbing is certainly the degree of intensity of the mobber’s behavior, or the stress of the mobbed person related to the person of the mobber.
Types of mobbing
Mobbing is a diverse phenomenon that occurs in a variety of relationships. Legal studies usually distinguish its three types:
- vertical mobbing – the most commonly reported type of mobbing, known for years. The victim is the employee, and the mobber is the employer or someone acting on his behalf;
- horizontal mobbing – increasingly common in practice and involves co-workers who are not in a relationship of subordination;
- ascending mobbing – also more prevalent now than in the past, in which a member of management experiences mobbing behaviour from his subordinates.
Regardless of the type of mobbing, the employer – as the entity obliged to prevent mobbing – may be liable for negligence.
Discrimination in an organization – what makes it different from mobbing?
Discrimination is the inferior treatment of an individual or group in relation to the general population. Discrimination occurs because of a specific, objective characteristic of a person or group, such as beliefs, religion, gender, nationality or race.
In contrast to discrimination, mobbing is the result of a subjective assessment by the mobber, who selects the victim because of, for example, his/her mental weakness. Mobbing is also generally a long-term phenomenon. Discrimination, on the other hand, can be a one-off.
The burden of proof – differences between mobbing and discrimination
In the case of mobbing the employee has to prove to the court that he was the victim of mobbing. In the case of discrimination, the burden of proof falls on the other party – the employer must prove that by treating employees unequally, he did not apply criteria that are unacceptable from a legal point of view.
What can anti-mobbing and anti-discrimination prevention consist of?
Prevention is, first of all, the introduction of appropriate procedures in the organization, followed by actions taken by the organization to raise the level of awareness of employees and decision-makers in the organization. These may include:
- appropriate procedures implemented in the form of relevant documents (so-called Anti-Harassment Policy, recruitment procedures);
- open discussions with managers and employees;
- any other information activities not listed above.
The harsh consequences of failing to take preventive action
The occurrence of difficult situations in an organization always brings about severe consequences. In the absence of appropriate procedures or a trained team, these can include not only image damage, but also legal liability, high staff turnover and a negative working atmosphere. In extreme cases, there may even be financial consequences if the person being harassed/discriminated goes to court.
Prevention is the most effective management method
Let us remember that taking appropriate actions in the legal area (internal company regulations) and in the organizational area (management sphere, training) builds a stable and safe for all culture of the organization. Such a situation translates directly into a good image of the company, positive work atmosphere and clear procedure for employees to report irregularities. The regulations in this area, which are understood by everyone, allow for quick and effective undertaking of appropriate actions in case of occurrence of difficult situations in the organization.
Karolina Barałkiewicz-Sokal, attorney-at-law (PL)
Paula Staszak-Urbańska, LL.M., trainee attorney-at-law (PL)