Workplace bullying in Poland – when it occurs, how to prove it, and what remedies are available to employees

NOTE: New regulations on workplace mobbing – what the UD183 draft will change

The Ministry of Family, Labor, and Social Policy has prepared a draft amendment to the Polish Labor Code, designated as UD183, which proposes significant changes to the regulations governing workplace bullying. The proposed solutions will significantly alter the very definition of workplace bullying, and consequently, the assessment of employers’ liability in bullying cases and the conduct of litigation. The new regulations are scheduled to take effect in 2026, though the current legislative stage indicates that this timeline is realistic, although still dependent on the course of the legislative process and any potential changes to the draft. As of the publication of this article, however, the amendment has not yet entered into force.

Employee Claims for Mobbing

Before attempting to define how an employer should defend itself in a situation where an employee files a lawsuit, it is first necessary to define what claims an employee is entitled to in connection with workplace bullying. In other words, what consequences might the employer face if the Polish labor court grants the employee’s claim.

The Polish Labor Code provides for a range of monetary claims that an employee affected by workplace bullying may pursue against the employer. First, it should be noted that an employee experiencing workplace bullying has the right to terminate the employment contract without notice (Art. 55 § 1¹ of the Polish Labor Code).

With regard to financial claims against an employer, an employee may seek, in particular:

• monetary compensation for the harm suffered, if the workplace bullying caused a health impairment (Section 94³3 of the Polish Labor Code), as well as
• compensation in an amount not lower than the minimum wage, determined in accordance with separate regulations, in the event that the employee was subjected to workplace bullying or terminated their employment contract as a result of workplace bullying (Article 943⁴ of the Polish Labor Code).

How does the Polish labor court determine the amount of compensation for workplace bullying?

In cases involving workplace bullying, employers often ask about the amount of potential compensation that the court may award if it finds the employee’s claim to be valid. Of course, the answer to this question is complex and depends in each case on the facts of the matter and a number of factors, such as:

• the type of workplace bullying,
• the scale of the violation,
• the intensity of the bullying,
• the duration of the bullying, etc.

Generally, however, courts take the position that the amount of compensation awarded to the aggrieved employee for workplace bullying should be set so that, in the future, the employer refrains from tolerating unacceptable behavior in the workplace (as, for example, the Polish Supreme Court stated in its judgment of August 8, 2017, case no. I PK 206/16). In the judgment of the Polish Court of Appeal in Katowice dated December 6, 2013 (case no. I ACa 897/2013), the Court held that the extent of the victim’s harm is left to the discretion of the so-called judicial discretion.

This means that determining the amount of compensation for the harm suffered is a key prerogative of the court hearing the case of a victim of workplace bullying. One of the fundamental criteria for assessing the amount of compensation is to consider the circumstances affecting the amount of compensation in relation to each individual case and the specific victim.

It should also be borne in mind that compensation for harm to an employee’s health caused by workplace bullying under labor law may require not only reimbursement of the costs of necessary medical treatment, but sometimes also, for example, coverage of the costs of retraining for a different profession, and even the award of an appropriate disability pension in the event of loss of ability to work as a result of workplace bullying, but also redressing the sense of harm in the intangible mental and psychological spheres of the victim (Polish Supreme Court judgment of June 21, 2013, case no. III BP 4/12).

When does behavior constitute workplace bullying? Legal requirements

As indicated above, the definition of workplace bullying identifies several conditions that must be met cumulatively for a given behavior to be considered workplace bullying. It is not sufficient to meet only some of the conditions of workplace bullying separately. The conditions for workplace bullying are as follows:

• the actions or behavior must concern an employee or be directed against an employee,
• they must consist of persistent and long-term harassment or intimidation of the employee,
• must result in an underestimation of the employee’s professional competence, cause or be intended to humiliate or ridicule the employee, or isolate or exclude the employee from the team

The wording of the statutory definition of workplace bullying indicates that all the statutory criteria set forth therein must be met cumulatively; therefore, failure to meet even one of these criteria will result in the dismissal of the claim.

• For example, in a situation where the harassment or intimidation of an employee occurs once or even several times but is not persistent or long-term, it should not constitute mobbing. Of course, the duration of the harassment or intimidation of an employee is considered on a case-by-case basis, taking into account the specific circumstances of each case. It is therefore not possible to rigidly specify a minimum period necessary for mobbing to occur (Polish Supreme Court judgment of January 17, 2007, case no. I PK 176/06).

• In one of the cases it considered, the Polish Supreme Court took the position that, in cases of high-intensity harassment or intimidation of an employee, it cannot be ruled out that a period of 5 weeks may be sufficient, especially when the victim is a person with a sensitive psyche (Polish Supreme Court judgment of April 22, 2015, II PK 166/14).

• Another necessary condition is the persistent nature of the harassment, which is understood as a significant degree of malice on the part of the harasser. Persistence refers to behavior that is prolonged over time, constantly repeated, and inevitable (from the victim’s perspective), which is burdensome and ongoing in nature. Therefore, if the harassment is not continuous or regularly distressing, it cannot be considered that the element of persistence has been met. Given that “persistence” is undoubtedly a highly subjective concept, it will often be difficult to prove that this element has been met.

• With regard to the criterion of an underestimated assessment of professional competence, however, in the course of any potential litigation, the employer should bear in mind that when evaluating this criterion, it is necessary to establish an objective standard of a “reasonable victim,” which allows for the exclusion from the scope of workplace bullying of cases resulting from an employee’s excessive sensitivity. Only by proving that an average-sensitivity person (and not an overly sensitive one, which, based on our experience, is the case in many workplace harassment lawsuits) could have felt humiliated by the employer’s words or actions will this prerequisite be met.

• With regard to the cause of the health impairment, it should be noted that the medical records submitted by the employee alone do not constitute sufficient evidence to determine whether workplace bullying caused the health impairment. It is essential for the court to obtain an expert opinion from a medical specialist, such as a psychiatrist, cardiologist, neurologist, etc. Only if the opinion is prepared in accordance with the provisions of the Code of Civil Procedure and confirms the health impairment will it constitute credible evidence in the case.

In summary, to successfully pursue a claim for workplace bullying, the plaintiff must demonstrate that all elements of the definition of bullying have been met. However, if the employer skillfully challenges one of the necessary elements for classifying the behavior or behaviors as workplace bullying during the trial, the claim may be found to be baseless and, consequently, dismissed by the court.

Examples of workplace bullying in Polish labor court case law

The following behaviors by an employer may be considered workplace bullying (for example, the judgment of the Polish Court of Appeals in Wrocław dated September 27, 2012, case no. III APa 27/12):

• constantly interrupting speech,
• reacting by shouting,
• constantly criticizing and reprimanding,
• humiliation,
• making threats,
• avoiding conversations,
• preventing the employee from speaking,
• ridicule,
• restricting the ability to express one’s own opinion,
• informally prohibiting conversations with the harassed employee,
• preventing communication with other employees
• assigning work that is below the employee’s qualifications and demeaning,
• excluding the employee from responsible and complex tasks,
• overloading the employee with work or failing to assign any tasks, or taking tasks away.

When is it not considered workplace bullying under Polish law?

When an employee files a lawsuit against an employer for workplace bullying, the employer will be forced to defend its legal interests to avoid being ordered to pay damages and compensation to the employee. In practice, the employer has a number of options to counter the employee’s claims. Of course, it should be kept in mind that every factual situation is different, and the list below represents only the most common defenses.

Behaviors that do not meet the criteria for workplace bullying under the Polish Labor Code

It often happens that an employee claims to be a victim of workplace bullying, while it is impossible to conclude that bullying occurred within the meaning of the criteria set forth in Article 94³ § 2 of the Polish Labor Code.

• An employee may confuse workplace bullying with negative performance evaluations, instructions from supervisors, the enforcement of goals (e.g., sales targets), a stressful or tense atmosphere in the workplace, or the inability to have private conversations with other employees. Most often, employees mistakenly consider the employer’s normal enforcement of instructions to be mobbing, forgetting that a subordinate relationship stems from the nature of the employment relationship, and that any criticism of their actions cannot automatically be considered mobbing.
  
  
• An analysis of the case law of the common courts and the Polish Supreme Court indicates, however, that justified criticism of an employee is a legal tool in the employer’s hands to ensure the proper performance of employee duties, even when interpreted negatively by the employee. It is important to remember the employer’s interest, as the employer has the right to protect their interests and to ensure that the employee fulfills the duties set forth in the employment contract.
  
  
• Court rulings indicate that it does not constitute workplace bullying for an employer to enforce an employee’s compliance with lawful work-related instructions, provided that such action is taken within the bounds of the law and does not violate the employee’s dignity (Polish Supreme Court judgment of December 8, 2005, case no. I PK 103/05).
  
  
• Nor does the mere expression of criticism (even in an emotional manner) constitute grounds for finding that workplace bullying has occurred, provided such criticism is intended to ensure the proper organization of work or to resolve disputes regarding compensation. The mere lack of tolerance for certain, even reprehensible, behaviors on the part of a supervisor, as well as a differing vision of work organization, do not provide grounds for concluding that such behaviors constitute mobbing (judgment of the Polish Court of Appeals in Gdańsk, 3rd Labor and Social Insurance Division, dated July 4, 2013, case no. III APa 12/13).
  
  
• The courts also point out that the atmosphere of psychological tension among staff members accompanying announced layoffs cannot be considered mobbing either.
  
  
• In assessing whether there has been persistent and long-term harassment or intimidation of an employee aimed, among other things, at excluding them from the team of colleagues, the following circumstances are relevant: the employer’s notification of planned layoffs, the options for early retirement or receiving a pre-retirement benefit, the introduction of benefits for employees who decide to leave their jobs on a priority basis within a specified timeframe (Polish Supreme Court judgment of March 20, 2007, case no. II PK 221/06).
  
  
• Ignoring an employee (for example, by refusing to shake their hand or speak to them) by a group of colleagues should not constitute workplace bullying if the employee reporting the alleged bullying has behaved disloyally toward them (judgment of the Polish District Court in Olsztyn, 4th Labor and Social Security Division, dated November 24, 2016, case no. IV P 686/15).
  
  
• The isolation of an employee within a group of coworkers does not constitute an independent element of workplace bullying. Only isolation within a group of employees resulting from actions involving negative behaviors covered by this provision (harassment, intimidation, humiliation, ridicule) justifies a finding of mobbing (Polish Supreme Court judgment of November 14, 2008, II PK 88/08)
  
  
• A situation where an employee’s coworkers showed no interest in his health and well-being, for example, when he came to work limping and no one paid him any attention, also does not meet the criteria for mobbing (judgment of the Polish Court of Appeal in Gdańsk, 3rd Labor Division, dated March 22, 2013, case no. III APa 3/13).

Every case of potential workplace bullying requires an individual and thorough analysis of all the circumstances of the case.

Anti-bullying procedures as part of the employer’s defense

In its ruling of August 3, 2011 (case No. I PK 35/11), the Polish Supreme Court noted that an employer’s liability for workplace bullying is based on the principle of fault, not risk. This ruling is of fundamental importance to employers, as in practice it means that in the event of a legal dispute, it may be sufficient for the employer to demonstrate what measures were taken to prevent abuse in the workplace in order to avoid liability. The Polish Supreme Court has ruled that if an employer demonstrates that it took concrete measures to prevent workplace bullying and, when assessed objectively, their potential effectiveness can be confirmed, the employer may be released from liability.

In a hypothetical court case involving workplace mobbing, the employer should therefore attempt to demonstrate that they took specific, concrete measures to prevent mobbing. These measures may primarily include:

• conducting employee training,
• implementing appropriate anti-mobbing procedures and policies in the workplace, aimed at effectively detecting and eliminating mobbing.

The choice of appropriate measures on the part of the employer will, of course, vary depending on the employer, the nature and environment of the workplace, the number of employees, the frequency of their interactions, and so on. However, in light of the ruling cited above, if the employer demonstrates that it took concrete steps to prevent workplace bullying, it may be exempt from civil liability.

For in a situation where, despite the employer having implemented anti-mobbing training, procedures, and policies, mobbing still occurred, this may indicate that the person subjected to mobbing did not take advantage of the opportunity to counteract the phenomenon by initiating anti-mobbing procedures, or that the person engaging in mobbing violated their employee obligations, openly violating the rules established by the employer. In this situation, the subject of the harassed employee’s claim should not be the employer, but the person responsible for the harassment, for example, a specific employee.

How to prove mobbing in court proceedings?

In the event that an employee files a lawsuit, the employer should also take into account the legal principle set forth in Article 6 of the Polish Civil Code in conjunction with Article 300 of the Polish Labor Code, according to which the burden of proof rests with the party seeking to derive legal consequences from a given fact. In light of the wording of the above provisions, in the event of a legal dispute, the employee must therefore demonstrate that each of the conditions set forth in Article 94³(2) of the Polish Labor Code has been met. Only then can it be concluded that the action or behavior was, in fact, mobbing within the meaning of the Polish Labor Code. The employee also bears the burden of proving that the harassment resulted in a health impairment if they are seeking monetary compensation.

The employer’s defense, on the other hand, will aim to prove that the employee has not demonstrated that any or all of the conditions of the provision have been met, for example, that the conduct was not persistent or long-term, but rather incidental in nature. Of course, each assessment of whether an employee experienced workplace bullying or not will require a detailed analysis of the facts and a thorough review of the evidence in the case.

Consequently, proving workplace bullying can be difficult because the employee will be required during the trial to present reliable evidence to support their claims. In workplace harassment cases, the most commonly cited source of evidence is witnesses that is the plaintiff’s coworkers. Skillful cross-examination of witnesses by the defendant’s attorney can, in many cases, influence how the court perceives and analyzes the facts of the case, and consequently, whether the plaintiff’s claim will be upheld by the court.

It is also worth remembering that the defendant employer should also take the initiative in presenting evidence in a workplace harassment case, primarily using evidence from witness examinations—other employees (for example, to demonstrate proper employee relations), any workplace monitoring, all information regarding the reporting (or non-reporting) of irregularities by the employee, or the employee’s personnel file (e.g., entries regarding disciplinary actions).

Summary

The definition of workplace bullying set forth in the Polish Labor Code undoubtedly contains many vague terms, which have been clarified by extensive case law from the general courts. However, employers should bear in mind that even unfair but isolated criticism of an employee should not be classified as workplace bullying. An employee’s mere perception that the actions and behaviors directed at them constitute workplace bullying is not sufficient grounds to conclude that bullying is actually occurring. In judicial practice, however, there are frequent cases in which courts find that the statutory elements of workplace bullying have been established, leading to the award of substantial compensation to the employee.