It has been more than two months since the last conference “Discrimination and mobbing at work”, organised by our law firm. Numerous participants in the event and a wide interest the topic once again proved how important the issues we touched upon were and, above all, how important it is to raise awareness of employers and employees in this area. During the meeting, many questions were also asked about how to protect people employed under civil law contracts from mobbing and discrimination.
Who is protected by the Labour Code?
The definition of mobbing can only be found in the Labour Code, specifically in Article 94 fn. 3. It refers in its content to several elements:
- action or behaviour concerning or directed against the employee;
- persistent and prolonged harassment or intimidation of an employee;
- causing the employee to suffer a lower appraisal of his or her professional suitability;
- humiliating or ridiculing the employee;
- isolating or eliminating an employee from the team.
The cited definition of mobbing thus refers only to the “employee”.
When looking at the claims that can be raised for mobbing, which under the Labour Code include monetary compensation and damages, we also note that the Labour Code, in defining the rights of the person suffering mobbing, operates with the concept of “employee”.
It follows from the above that only an employee is a person subject to protection against mobbing under the Labour Code and, at the same time, a person entitled to pursue claims on this account.
Who has the status of an employee?
The status of an employee is held, inter alia, by persons employed under a contract of employment. Other bases of employment constituting the status of an employee include:
- co-operative employment contract.
However, civil law contracts, such as commission, co-operation or B2B contracts, are not included in the appointed bases of employment. This means that persons employed on the basis of civil law contracts do not benefit from the protection against mobbing provided by the Labour Code. Thus, they do not have the right to pursue claims (compensation, damages) on this account based on the provisions of the Labour Law.
Acquisition of employee status
Importantly – the status of an employee is acquired as soon as the employment relationship is established, which occurs when the employment contract is concluded or when the employee actually joins the workplace.
This means that protection against mobbing usually only starts to run after the conclusion of the employment contract, which further makes it impossible for job candidates to claim it.
Does this also apply to protection against discrimination?
According to the literal wording of the Labour Code, protection against discrimination and compensation on this account is granted to persons in respect of whom the employer has violated the principle of equal treatment in employment. We are talking here about the person and not the employee, from which two consequences follow:
- protection from discrimination extends to the time before the conclusion of the employment contract, i.e. to the stage of recruitment for the job;
- persons employed on the basis of civil law contracts are not protected against discrimination – the Labour Code regulates only the rights and obligations of employees and the legislator’s use of the phrase “person” instead of “employee” does not extend in any way the catalogue of persons entitled to pursue claims under the Labour Code.
What claims, therefore, remain for persons employed under civil law contracts?
Since the provisions of the Labour Code do not apply to persons employed under a civil law contract, it is worth looking at other acts in search of protection for such persons.
Among other things, a person employed under a civil law contract is entitled to a claim under the Civil Code, based on the provisions on the protection of personal rights. The personal goods whose violation such a person may claim are, for example:
A person against whom a violation of personal rights has been committed may demand:
- to desist from the infringement;
- make a statement of appropriate content and form;
- financial compensation;
- payment of a sum of money for a social purpose.
How to effectively pursue such claims?
Bringing a civil action against one of the above claims is done by filing a lawsuit in the district court with jurisdiction over the defendant’s place of residence or seat, against the specific infringer. This is quite a difference from claims for mobbing or discrimination, where the defendant is usually the employer, regardless of who actually committed the violations.
The often recommended step to take before filing an official action with the court is to issue a written summons to the infringer asking him to cease his violations. Practice shows that often simply calling the infringer’s attention is enough to make him stop his actions.
Is protection under the Civil Code sufficient? Which legal regime provides a better guarantee for the respect of personal rights?
In my opinion, the assertion of rights by persons employed under civil law contracts is much more difficult, in particular in comparison with the assertion of rights on the grounds of discrimination.
Let us remember that in the case of civil law contracts, the burden of proof lies with the person asserting their rights. The laconic nature of the regulations and the broad catalogue of behaviour falling within their scope cause many problems in practice in proving the unlawfulness of the infringement of a given personal good.
In the case of mobbing, on the other hand – while the burden of proof also lies with the employee – the multiplicity of prerequisites to be proven by the employee is often problematic.
Contrary to appearances, the employee who wants to prove discrimination is in the best procedural position, because in this case the legislator decided to apply an exception and to shift the burden of proof to the employer.
What can the Polish legislator do?
I think that in the era of the growing popularity of civil law contracts (contracts, B2B, mandate agreements), it has become necessary to adapt the current Labour Code provisions to the changing realities of employment. Perhaps by extending protection against mobbing and discrimination also to those employed on civil law contracts. The question, however, is how to reconcile the extension of such protection with the legislator’s intention to extend the Labour Code regulations only to persons with employee status. Perhaps a better option would be to regulate mobbing and discrimination in a separate act, also protecting persons on civil law contracts? These and many other questions are raised by the topic of mobbing and discrimination and the increasingly loud signals coming from outside about the need for proper, full regulation of these issues.
Paula Staszak-Urbańska, LL.M., trainee attorney-at-law (PL)