The amendments adopted by the Sejm changing the definition of mobbing may indirectly affect criminal liability. Although no new criminal offence is being introduced, the definition of mobbing clearly refers to stalking (Article 190a of the Criminal Code). It is worth remembering who can be held criminally liable and for what actions in connection with mobbing.

Can a workplace bully be prosecuted for a criminal offence?

There is no single, specific provision that establishes criminal liability for mobbing. This will remain the case even if the currently proposed amendment to the Labour Code enters into force. On the other hand, mobbing usually consists of a series of behaviours and acts that may constitute criminal offences, even when assessed separately. Bullies may therefore be held liable for defamation, harassment, common assault, threats, or false imprisonment.

The criminal offence of stalking may also bear the characteristics of mobbing, but this requires more than merely persistent harassment of an employee. A stalker must also cause their victim to develop a justified sense of threat, humiliation or distress, or must significantly violate the victim’s privacy. If these conditions are met, a workplace bully commits a single criminal offence punishable by imprisonment for six months to eight years.

Whether the perpetrator is prosecuted is entirely up to the victim. Stalking is prosecuted at the victim’s request, following a formal complaint submitted to the investigative authorities, i.e. the police or the prosecutor’s office.

Will an employer be held criminally liable for failing to prevent mobbing?

Actively preventing and counteracting mobbing is one of the employer’s basic obligations. This means that an employer (or members of the company’s governing bodies) may potentially incur criminal liability for failing to fulfil this obligation.

If a company fails to take appropriate preventive measures, thereby creating an environment conducive to mobbing, then liability for aiding and abetting mobbing could potentially be considered. The absence of protective or verification mechanisms may make it easier for the bully to operate.

Theoretically, if a member of the management board is aware that  an individual is engaging in workplace bullying and takes no action, then they could even be held liable as a principal offender. This would mean that the management board member would be held liable as if they had committed the offence of mobbing themselves. This possibility is set out in Article 2 of the Criminal Code, which states that criminal liability for a result-based offence committed through omission may only be imposed on a person under a specific legal duty to prevent that result.

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