A year has passed since the change of the legal definition of discrimination and expanding possibility of mobbing claims. It is worth to assess the solutions implemented, especially when recently the proposal has come through to redefine mobbing. 

Discrimination definition change

The amendment to the Labour Code, which entered into force on 7 September 2019, was to facilitate the claims for discrimination in employment. The amendment proposed to redraft regulations to fully open the catalogue of discriminatory criteria in Art. 11 (3) and 18 (3a) of the Labour Code. 

Up to now, the jurisprudence of the Supreme Court has distinguished two groups of forbidden discriminatory criteria, which were separated by the phrase "and also (with / without) regard to", making the catalogue semi-open. The first group of criteria listed concerning the personal characteristics of an employee (including gender, age, disability) was exemplary, other personal characteristics (e.g. appearance, worldview) could be added, because they were preceded by the phrase "in particular". Consequently, the second group of criteria related to the terms and conditions of employment constituted a closed catalogue (distinguishing only: employment for a fixed / indefinite period and full-time / part-time employment).

Due to the amendment, this catalogue also became open, as the above-mentioned wording was removed. Currently, it is also possible to refer to other criteria relating to work, not mentioned in the provision (e.g. the location, which is important for employees working in different places for the same employer). 

However, it must be remembered that there will be no unequal treatment if the employer's actions are proportionate and objectively justified, despite the applied discriminatory criterion. 

Changing the scope of claims for mobbing

For 15 years, until the change on 7 September 2019, employees had the right to claim compensation from the employer only if they terminated the employment as a result of mobbing. Currently, they do not have to and can claim their rights also during employment. The legislator decided that the mere "experience" of mobbing would be sufficient.

Previously, it was difficult to pursue claims if the employee did not indicate mobbing as the reason for terminating the employment. The Supreme Court declared that in such a situation it is possible to pursue claims for mobbing on general terms under the Civil Code (Art. 415 et seq.).

Now the employee will not have to look for solutions outside the Labour Code – the mere fact of experiencing mobbing will be enough.

The latest proposal – redefinition of mobbing

The bill, expanding the definition of mobbing to include "differentiating the amount of remuneration based on the employee's sex", is at the stage of legislative work. It was proposed with the goal to close the gender pay gap, i.e. the difference in remuneration received by women compared to men for the same work. 

A small number of court cases under Art. 94 (3) par. 4 of the Labour Code, often caused by evidentiary difficulties, shows that solving a problem by redefining mobbing is an ineffective solution. Moreover, gender equality is already protected by anti-discrimination and equality laws, yet the gender pay gap remains.

More in the article by Maciej Mioduszewski "Regulations related to discrimination and mobbing are tightening" for Rzeczpospolita.